Larry Junior WARD, Appellant, v. Gene M. JOHNSON, Warden, Sgt. Gardner, Chairman of Adjustment Committee, Appellees.
No. 79-6304.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 7, 1981. Decided Dec. 30, 1981.
667 F.2d 1126
The validity of the search in Bakersfield turns on the authority of Edwards to consent to the search of the properties of Mattocks and Sellers in Edwards’ home. Valid third-party consent to a search may be given by one who “shares with the absent target of the search a common authority over, general access to, or mutual use of the place or object sought to be inspected under circumstances that make it reasonable to believe that the third person has the right to permit the inspection in his own right and that the absent target has assumed the risk that the third person may grant this permission to others.” United States v. Block, 590 F.2d 535, 539-40 (4th Cir. 1978); United States v. Buettner-Janusch, 646 F.2d 759, 765 (2d Cir. 1981) (U.S. appeal pending). Moreover, whenever one “knowingly exposes his activities [or effects] to third parties, he surrenders Fourth Amendment protections” in favor of such activities or effects. Reporters’ Com. v. American Telephone & Telegraph, 593 F.2d 1030, 1043 (D.C.Cir.), cert. denied 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979); to the same effect, see United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976); United States v. Carter, 569 F.2d 801, 803 (4th Cir.), cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978); United States v. Walker, 575 F.2d 209, 212 (9th Cir. 1978), cert. denied 439 U.S. 931, 99 S.Ct. 320, 58 L.Ed.2d 325.
There can be no question that the defendants had given no indication of any expectation of privacy in their effects in the apartment. Both had voluntarily consented earlier at the time of their arrest to a search of their apartment and the effects therein. This was known by Edwards. The defendants certainly gave free access to all their effects in their apartment to Edwards and his wife when they authorized them a day or two after their arrest to remove their effects from the apartment and store them at their [the Edwards‘] apartment. They manifested no purpose to deny to Edwards or his wife the right to inspect those effects. Under these facts, the defendants surrendered any claim to Fourth Amendment protection against an authorization to search voluntarily given by Edwards.
This case presents a quite different situation from that addressed by this Court in United States v. Presler, 610 F.2d 1206 (4th Cir. 1979). In Presler, the defendant had entrusted to the third party two briefcases, which are ordinarily depositories of personal papers. Those briefcases were locked and the keys to them were retained by the defendant. The defendant did not knowingly expose the contents of those briefcases to the third party; in fact, he took every precaution to protect the contents of the briefcases from the third party. The defendants did nothing like that here. Everything in the apartment was openly exposed with nothing locked but all available for view and transfer by the Edwards. We agree with the district judge that Edwards’ authorization to search the defendants’ effects as taken from their apartment in Bakersfield and stored in his (Edwards‘) apartment, was valid.
The judgments of conviction of both the defendant Mattocks and the defendant Sellers are accordingly
AFFIRMED.
Carter Glass, IV, Richmond, Va. (Mays, Valentine, Davenport & Moore, Richmond, Va., on brief), for appellant.
Richard F. Gorman, III, Asst. Atty. Gen., Richmond, Va., (Marshall Coleman, Atty. Gen. of Va., Richmond, Va., on brief), for appellees.
Before WINTER, Chief Judge, HAYNSWORTH, Senior Circuit Judge, and RUSSELL, Circuit Judge.
Plaintiff, a prisoner convicted under state law and incarcerated in a state penal institution, sued Gene M. Johnson, the warden of the institution in which plaintiff was confined, and H. T. Gardner, the chairman of the institution‘s disciplinary committee which sentenced plaintiff to a loss of eight recreation periods for his alleged interference with prison guards’ efforts to quell a fight between two other prisoners. After the plaintiff served this punishment, the
The issue we must decide is the extent of a prisoner‘s right, if any, to call witnesses at a prison disciplinary hearing. Plaintiff sought to produce the testimony of three inmates in his defense, but he was denied the right to call them. He contends that he was thus denied procedural due process. The district court gave judgment for defendants on the ground that the loss of recreational time was too insignificant to constitute a claim of constitutional magnitude.1
We reverse as to defendant Gardner and remand for an award of nominal damages. As to defendant Johnson, we affirm.
I.
On December 15, 1977, plaintiff had completed a recreational period in the recreation yard of the Mecklenburg Correctional Center. After he was placed in handcuffs and restraints and directed to go indoors, inmate Ronald Graham attacked several inmates with a radio antenna, employing it like a knife. Plaintiff kicked Graham but it is disputed whether this was done in self-defense or whether Graham had already been subdued so that the kick was an unprovoked assault by plaintiff. In any event plaintiff was pushed by the guards up the stairs to the interior of the institution and taken to his cell.
As a result of the incident, plaintiff was charged with “Delaying Hinderling [sic] or interfering with an employee in performance of his duties,” and the description of the offense given was that the plaintiff was observed “resisting and wrestling . . . [with two prison officers] as they were attempting to break up a fight . . . on the recreation yard.” The offense charged was a Category B offense which carried a maximum penalty of loss of good conduct time up to thirty days, or isolation from one to fifteen days, or both. Virginia Department of Corrections Guideline No. 861(IV)(A) and (B). A hearing on the charge before the disciplinary committee was conducted four days later. Plaintiff appeared, not represented by counsel but assisted by an inmate advisor, and testified that he had not been wrestling with prison officials, but instead had been trying to maintain his balance while being pushed upstairs.
The charging officer testified at the hearing and stated that plaintiff‘s interference with the guards’ efforts to subdue Graham consisted of plaintiff‘s kicking Graham. As to the alleged wrestling, the officer conceded that plaintiff may have been trying to keep his balance, but he claimed that he had seen plaintiff kick Graham and this led him to infer that plaintiff was wrestling with the officers rather than merely maintaining plaintiff‘s balance. In closing the hearing, defendant Gardner, who was the presiding officer, read the written statements of three inmate witnesses into the record. They were to the effect that plaintiff was only trying to protect himself from Graham and trying to prevent Graham from stabbing another inmate, and that plaintiff did nothing to hinder or interfere with the officers. Indeed one statement suggested that the officers mistook plaintiff for Graham when the officers jumped him and roughly pushed him up the stairs. These statements, of course, had been prepared before the hearing and they did not directly respond to the charging officer‘s testimony that plaintiff had kicked Graham without provocation. When plaintiff sought the production of these three inmate witnesses to give live testimony, his motion was denied on the ground that any testimony from them would be cumulative and would not make any difference in the decision to be
This suit ensued.
II.
In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court defined the procedural due process rights of prisoners with regard to prison disciplinary proceedings. Under consideration in Wolff was Nebraska‘s disciplinary regime which could result in loss of good time as well as disciplinary confinement (“solitary” confinement). Included in the general consideration was a discussion of a prisoner‘s right to call witnesses, and the rule established was that “the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.”2 At the same time, the Court said that it was not suggesting that the procedures prescribed “would also be required for the imposition of lesser penalties such as the loss of privileges.” 418 U.S. at 571 n.19, 94 S.Ct. at 2982 n.19.
Wolff‘s discussion of a prisoner‘s right to call witnesses was quoted and cited with approval in Baxter v. Palmigiano, 425 U.S. 308, 320-21, 96 S.Ct. 1551, 1559, 47 L.Ed.2d 810 (1976), where the right to call witnesses was contrasted with the rights of confrontation and cross-examination. In Baxter, lest there be doubt as to the basis of the holding in Wolff, it was stated that “[t]he right to call witnesses, like other due process rights delineated in Wolff, is thus circumscribed” by the necessity of a mutual accommodation between the rights of the individual and the needs and objectives of the institution. 425 U.S. at 321, 96 S.Ct. at 1559 (emphasis supplied). The right has been recognized in Virginia. Virginia‘s Department of Corrections Guideline No. 861(VI)(D)(3)(c) states that an inmate charged with an infraction meriting punishment has the right to “present the voluntary testimony of witnesses, either inmates, correctional personnel or others, in his/her
Based upon Wolff and Baxter, we are of the view that a prisoner faced with disciplinary proceedings resulting in a loss of good time or disciplinary confinement has a constitutional right to call witnesses in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. We recognize that there is contrary authority in this circuit. See Pollard v. Baskerville, 481 F.Supp. 1157 (E.D.Va.1979), aff‘d, 620 F.2d 294 (4 Cir. 1980) (table). At the same time there is also a decision in accord with our conclusion. See Bratten v. Smith, 649 F.2d 862 (4 Cir. 1981) (unpublished). But our decision in neither Pollard nor Bratten is binding authority, see Fourth Circuit Local Rule 18(d)(i) and (ii), and we are persuaded that the district court opinion in Pollard is in conflict with what was said in Wolff and Baxter.
In the instant case there is a subsidiary question whether the rule of Wolff applies, because plaintiff suffered a loss of only eight recreational periods—a loss of privileges—and not the loss of good time or a stint in solitary confinement. The answer depends upon whether the applicability of the Wolff rule depends upon the punishment actually imposed or upon that which might have been imposed, because plaintiff was exposed to a maximum penalty of loss of some good time and a limited period of solitary confinement.
The Supreme Court stated in Baxter that it would not consider whether minimal procedural due process was required when a prisoner was deprived only of privileges, because the prisoners who were plaintiffs in that case “were brought before prison disciplinary hearings for allegations of the type of ‘serious misconduct’ . . . that we held in Wolff to trigger procedures therein outlined.” 425 U.S. at 323, 96 S.Ct. at 1560. This seems to indicate that the test is the severity of the potential punishment and not the actual punishment. The two courts of appeals which have considered the question have both come to that conclusion. See Gates v. Collier, 501 F.2d 1291 (5 Cir. 1974); Ware v. Heyne, 575 F.2d 593 (7 Cir. 1978). We agree with those holdings.
III.
Having decided that plaintiff had a qualified procedural due process right to call witnesses in his defense at his disciplinary hearing, we turn to the question of whether that right was denied and, if so, the relief to which plaintiff is entitled.
The precise basis for the denial of plaintiff‘s request to present the testimony of inmate witnesses is murky. The imperfect transcript of the disciplinary hearing reflects that the witnesses were not heard because they were “accumulative [sic].” In response to an interrogatory asking why the witnesses were not called, defendant Gardner answered “I don‘t recall.” At trial Gardner testified that the witnesses were not called because their testimony was irrelevant.
Although the district court did not make a finding as to why Gardner refused plaintiff‘s request, there is nothing in the record other than the suggestion that the testimony was cumulative and perhaps irrelevant to justify the refusal. Specifically, there is no evidence that the presence of the witnesses would have presented any unresolvable problem of security or that their presence would have disrupted or posed any undue burden upon the workings of the institution. Indeed, the Virginia Department of Corrections Guideline purportedly gives a right to procure witnesses qualified only by the relevancy of their testimony and the fact that it is not cumulative.
On this record we can only conclude that defendant Gardner improperly denied
IV.
There remains only the question of the damages which plaintiff is entitled to recover from defendant Gardner.4
In the district court plaintiff was unable to show any special injury that he had sustained. His only loss was eight recreation periods. Under the circumstances, we think that he is entitled to recover no more than nominal damages for the violation of his right to procedural due process of law. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Burt v. Abel, 585 F.2d 613 (4 Cir. 1978). Accordingly we direct the district court on remand to enter judgment for plaintiff against defendant Gardner in the sum of $1.00.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
DONALD RUSSELL, Circuit Judge, dissenting:
I dissent. My difference with the majority relates to what I believe to be the dispositive issue in this appeal.
In my opinion, the dispositive issue in this
The critical and dispositive issue present in this
The majority would justify passing over this critical issue by declaring that this is “an inappropriate case on which to consider whether the hearing officer who presided at a disciplinary committee hearing is clothed with any judicial immunity.” It seems to reach this conclusion because the district court did not discuss the issue and such defense was “not developed in the briefs filed with us.” It does concede, however, that, by his answer, whether the district court decided it or not, the defendant did raise the issue. But whether the defendant in his brief in this case “developed” the point or the district court discussed immunity is not the issue.2 We are expected to do justice and, upon appeal, we are not confined in our decision by what the court below may have said or not said nor are we to disregard an absolute defense manifest indubitably on the record because it has not been fully “developed” by the defendant in his brief in this Court.
Simply because a party inadequately argues a point or a district court neglects to rule on the point is no reason for us to disregard a point, a decisive point in the disposition of the case. The defendant has suffered a judgment against him. The amount of the judgment is minimal but the legal costs of the action are not. They may involve both the costs of the trial in the district court and the proceedings in this court, as well as the allowance of an attorney‘s fee. This defendant, who obviously is a person of limited resources and who would suffer a real deprivation if forced to pay an unfair judgment, is facing a judgment of what may well be several thousands of dollars in costs. If he is immune from liability, it is wrong for him to be forced to pay that judgment and I submit it is our duty to inquire whether he is immune and, if he is, to free him from liability. We cannot stand by, shielded by the inaction perhaps of the district court or the inattention of counsel, and allow the defendant to be mulcted illegally and unfairly in damages when it is plain he is immune. I repeat: Courts exist to do justice and, if it is clear on the record that the defendant is immune from liability—as I submit the defendant is in this case—we are obligated to dismiss the action against the defendant. Since I think, with all respect for the contrary views of my brothers, that there is immunity in this case we should so declare, thereby affirming the dismissal of this action by the district court.
An administrative hearing officer, in my opinion, who is in effect an administrative law judge, is clothed with the same immunity as a judge in connection with any rulings made by him in the course of the administrative hearing itself. I perceive no more
Administrative law judges are a definite part of the judicial process and perform the same function as judges, only at a lower level. They certainly are analogous in any event to magistrates, who are admittedly immune from liability for their rulings, Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975). If administrative officers are to be denied immunity that normally protects the judicial officer in his official actions,3 who will be willing to accept the hazards of acting as an administrative law judge, knowing as he does that if he errs, he will be liable personally in damages?
Administrative proceedings for the resolution of disputed disciplinary actions in the prison context have grown immeasurably since the courts have required administrative hearings in the more serious disciplinary actions. In such administrative proceedings—just as in other administrative proceedings as well as in actual trial at the district court level—there is always the danger that the initial presiding officer may commit an error which could be regarded as violative of a fundamental right. Will one be willing to act as a hearing officer in such a proceeding with the threat over his head of a suit for personal damages if he errs in some ruling in the proceeding, especially where, as here, there is a right of administrative appellate review?
I would hold that the defendant Gardner was immune from liability for any error in any ruling that he may have made in the course of the administrative disciplinary proceedings, and I would affirm the dismissal of the action by the district court.
John Franklin PROSISE, Appellant, v. Gilbert A. HARING, Lieutenant; Henry W. Allen, Detective; J. R. Badey, Detective; Alvin Beuchart, Detective; Thomas Trumble, Officer; and Garber, Officer, Appellees.
No. 79-6310.
United States Court of Appeals, Fourth Circuit.
Argued June 2, 1981. Decided Dec. 30, 1981. Rehearing and Rehearing En Banc Denied March 19, 1982.
Notes
Actually the failure of the district court to discuss the fact, may be explained by the fact that the district court, which dismissed the plaintiff‘s claim on other grounds, saw no reason to discuss the immunity issue.We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate‘s interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases. Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case. The operation of a correctional institution is at best an extraordinarily difficult undertaking. Many prison officials, on the spot and with the responsibility for the safety of inmates and staff, are reluctant to extend the unqualified right to call witnesses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitutional impediments. There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents. 418 U.S. at 566-67, 94 S.Ct. at 2979-80.
“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.‘” (Quoting from Bradley v. Fisher, 13 Wall. 335, 351, 20 L.Ed. 646 (1872)). This rule of judicial immunity was held to apply to
§ 1983 actions. Id. at 356, 98 S.Ct. at 1104.