Timothy Turney v. Gene Scroggy Faye Henry and R.W. Pershing
831 F.2d 135
6th Cir.
1987
Check Treatment

*1 Thus, permits.2 actual result even could be drawn from a

sensible inferences rejections out of a small

small number rejections

sample, pattern of the six nearly

here was the most fair that was

possible in a statistical sense. Plaintiffs allege impact adverse

cannot or infer

suggestive from of discrimination these

figures. below was The court thus correct granting summary judgment despite efforts,

plaintiffs’ statistical AF- we

FIRM decision. its TURNEY,

Timothy Plaintiff-Appellee, SCROGGY; Faye Henry

Gene Pershing,

R.W.

Defendants-Appellants.

No. 86-5130. Appeals,

United States Court of

Sixth Circuit.

Submitted Oct. 1986.

Decided Oct. 1987. rejected, rejection rejected, 2. If four blacks were ratio were the ratio would 6%be black/10% black; would be 5% if four whites white. white/12% *2 136 arising an

42 U.S.C. 1983 out of incident § alleged July on which was to have occurred 27, that date he received a disci- 1984. On VII, plinary report Category for a Item 3 offense, “sexual assault” based an was turned in which Faye Henry and was investi- prison nurse investigating R.W. Persh- gated by officer ing.

Turney’s complaint in the district court prisoner was filed on the form used for actions under 42 1983. It names U.S.C. § Henry, Pershing, as defendants and Gene Kentucky Scroggy, Warden of the State Eddyville. Prison at The statement of reproduced fully claim is as follows: falsely of Plaintiff was accused assaulting Faye Henry defendant on 27 July 1984 when he went to the inmate injuries hospital for treatment for on his may out foot. What have started as an slight touching innocent was escalated completely proportion. and blown out of Adjustment Hearing, At his Committee Jones, Cooper, Linda G. Barbara W. guilty violating plaintiff was found of Cabinet, Sexton, Of- David A. Corrections rules, i.e., “Category VII, institutional Frankfort, Counsel, Ky., Leslie fice of Gen. 3, Assault” where no Offense “Sexual Shouse, Vose, Landrum, & Pat- Patterson injury force was used or serious oc- terson, Lexington, Ky., defendants-ap- Plaintiff sentenced to 180 curred.” was pellants. segregation years 2 days and loss [sic] pro Timothy Turney, se. good nonrestorable time credits. complaint requested following ENGEL, JONES and Before relief: NELSON, Judges. Circuit policy practice and/or of Declare ENGEL, Judge. charging inmates with sexual assault used, touching where no force was Scroggy, Faye Henry Defendants Gene unintentional, slight and no seri- Pershing appeal from an order of and R.W. injury defend- ous reslted Prohibit [sic]. District Court for the the United States enforcing ants from the non-restorable Kentucky denying their Western District of obligation, Expungment of in- time summary judgment motion for dismissal or records, mon- cident from all institutional qualified immunity. Our on the basis of #30,000.00 etary damages of [sic]. Forsyth, on Mitchell v. jurisdiction based 511,105 411 86 L.Ed.2d of his case further (1985), appeal permits which an immediate affidavit in the district court set- filed an deny- from an order under 28 U.S.C. 1291 § happened. ting forth his version of what ing qualified immunity a claim complaint expands The affidavit City judgment. Kennedy final also See claim; Turney appar- form’s statement Cir.1986). Cleveland, (6th F.2d 297 part to be ently intended the affidavit that on complaint. The affidavit states Timothy Turney, an inmate in- Plaintiff approximately p.m. 12:30 Kentucky July Peniten- 1984 at at the State carcerated hospital to brought Turney arrived at the inmate tiary Eddyville, an action under at foot, having knee. She further stated on an attached it receive treatment earlier. days few injured page plaintiff placed his hands on been joyous of a and his knee in somewhat her shoulder her arrived Plaintiff anticipating the attention He was mood. This was done while she was sit- side. receiving from the medical staff. he was ting in her desk. then a chair at She and relaxed confident especially felt He open instructed the door. *3 presents of Mrs. in the he was when [sic] play way. Whereup- That she don’t that grand- him of his reminded Henry. She on, up plaintiff supposedly backed and plaintiff very loves dear- Whom mother. opened requested. the door as she Henry had treated Defendant ly____ then statements The affidavit contains very professional and in a plaintiff minimizing Turney’s conduct: “Defendant return, al- manner. Plaintiff friendly plaintiff used or Henry doesn’t claim that in a manner he himself ways conducted harm____ bodily By the use of threatened Henry. thought acceptable to Mrs. imagination stretch of the can the brief no in- physical no attraction There was slight touching the similarities and and described defendant Other than volved. his Henry and between Mrs. resemblance to the of sexual assault.” raise level [sic] the ease in which she grandmother, and alleges The affidavit then duties, imagined plaintiff went about her Pershing, enraged perhaps by defendant nothing beyond that. or assumed the fact that an inmate had been involved particular on the Turney continued that charged employee, with a female the through procedure same day he went the highest offense so obtain the ser- as to Mrs. previously and waited until as he did punishment. veres There is no [sic] room. him into the treatment Henry called doubt that the trival incident was [sic] entering room alleged after the He There’s a substantial differ- escalated. him Henry promptly attended to and Mrs. inappropriate ence between sex act and her work completing after The main difference is sexual assault. During period she left the room. necessary prove the elements to the one once her dis- Henry Mrs. did not voice However, of and not the other. chief scream, pleasure with him. She didn’t plaintiff punish- concern to is the severe indicate she was talk loud or otherwise ment he received. fact, In plaintiff. point fearful throughout the Henry Mrs. was calm action Henry disciplinary initiated the nothing simply There is encounter. submitting following report in struggle insured record to indicate a writing adjustment to the committee: Henry Mrs. and him- between [sic] I inmate to come into the told the above self____ Nevertheless, defendant Persh- dressing hospital treatment room ing and started insinu- entered the room change on his toe. He came into the sexually ating accusing plaintiff of door and treatment room and closed the molesting Henry. plaintiff Mrs. Which against pushed over to me and walked However, inflatedly plaintiff denied. right with his my side and shoulder hospital escorted from the knee, (continued separate hands and again intimi- Yard Office. Where he was sheet) my His hands on shoulder and sexually trying dated and accused of to side, against I sat in a chair my knee as Henry. assault Mrs. open I instructed him to at the desk. Turney in his sub- continued affidavit that door, play way. He that I don’t Mrs. sequently got up up opened door. I backed against plain- action initiated door, and instructed and walked out report alleging by filing an incident tiff him come out and sit a chair enetered the treat- plaintiff had [sic] room. No one hallway by the treatment door, room, closed the walked over ment time, we area at the else was right push to her and her [sic] by anyone. not be seen with his hands and could side and shoulder no following undersigned re- is in fact evi- Pershing made the there Defendant in his plain- committee adjustment dence to that the port to the investigating supervisor: “Tur- capacity complaining as tiff assaulted the guilty. The statements is not ney states he question. on the date in We witness open The door was she are false. made having opinion reach this without had the got close to her.” he even never opportunity peruse a definition of the by considering “sexu- offense but rather adjustment commit- hearing A In August 1984. Mrs. al assault” its usual context. addi- held on tee was hearing had complaint that she Henry testified at tion to the fact that the states Turney had a sexual opinion complain- no touched touching further testi- intent in her. She right ant on the shoulder and the side her, Turney did not hurt but that fied that response with his hands and knee. adjustment commit- she felt insulted. questioning adjustment at the guilty and sentenced him found tee counsel, hearing by complain- inmate *4 segregation and loss of two days to 180 acknowledged opin- ant that she had no good credit. The committee years of time touching ion as to whether this was Findings following “Reason for stated the by prompted a motivated intent “Based on the fact and Punishment”: she hurt result of and that was not as a resident came in the room and closed that the encounter. stated that she felt She on placed the door then his hands and knee “insulted”. The defendant would have Henry. feels the sen- Ms. The Committee complaint pursuant the the Court dismiss necessary is to control resident’s be- tence id., Superintendent, finding to a Scroggy, acting super- havior.” Warden as support there is some to that evidence review, reviewed the action of intendent of finding the Committee’s that the adjustment concurred in the committee and in committed a sexual assault on the date its result. are, however, question. We convinced undisputed Turney’s complaint It is that Adjustment Committee did not amounts to a claim that the record made evidence, including the testimo- hear adjustment committee and re before the witness, upon ny complaining of the by factually so viewed the warden was support finding guilt. which to their finding Turney com deficient that the court, noting objections The district after the Due mitted a sexual assault violated magistrate’s report, accepted to the In the Process Clause of the Constitution. conformity and entered an order court, defendants moved for district the denying defendants’ for therewith motion quali on the basis of summary judgment summary judgment, appeal and this was immunity, arguing that the facts as fied duly taken. show that there was no described above Saxner, Cleavinger 474 U.S. process judge violation. The district due 193, 496, (1985), 106 S.Ct. 88 L.Ed.2d 507 magistrate, referred the motion a who Supreme the Court held that members of a the motion denied. recommended prison adjudicatory committee such as that magistrate The reached this conclusion af qualified immunity here have from suits hearing tape the of the nurse’s testimo ter damages. Cleav adjustment re contends that ny to the committee and inger viewing apply Henry, Pershing, the other evidence does not this and Superintendent, Massa they Scroggy the standard of and because did not act an Hill, chusetts Institution v. argument Correctional adjudicatory capacity. Turney’s 445, 105 2768, 356 Scroggy Scroggy’s 472 U.S. S.Ct. 86 L.Ed.2d must fail as to because (1985). magistrate report: reviewing The stated the committee’s deci function unquestionably adjudi appeal sion on was Magistrate tape

The the has reviewed Further, catory. Turney misapprehends plaintiff’s adjustment committee the Cleavinger, underpinnings whose hearing supplied which was the de- per who premise first was that officials support of their motion to fendants discretionary functions have at least This has form dismiss. review convinced

139 immunity damages. Hill, qualified good from suits for tion of time credits. 472 U.S. at 800, 806, 447-48, Fitzgerald, 457 U.S. Harlow v. 105 S.Ct. at 2770-71. 2732, (1982); 2727, 73 102 S.Ct. L.Ed.2d 396 Supreme The Court presented with 507, Economou, 478, 438 98 Butz v. U.S. question of whether the disciplinary 2911, (1978). 2894, 57 L.Ed.2d 895 enough had committee’s evidentia- specifically, Supreme had More Court ry satisfy process. due The already state Cleavinger held before explained first quantity Court of evi- enjoy prison employees qualified a immuni- process requires dence that due pris- ty, Navarette, Procunier v. deprives action that an in- 855, 859, (1978). 98 S.Ct. 55 L.Ed.2d liberty good mate of a interest such as time Thus, question Cleavinger was not credits: prison disciplinary We the requirements hold of due immunity, but whether their members have process are satisfied if some evidence immunity qualified is or absolute. supports prison the decision disci S.Ct. at 497. board to plinary revoke time cred allegations against Henry its. This standard is met there was Pershing, light read most favorable some evidence from which conclusion plaintiff, they are that initiated of the administrative tribunal could be disciplinary proceedings. Henry made the Ascertaining deduced— whether this testified, charge Pershing investi require standard satisfied does ex gated assigned charge the offense record, *5 amination of the indepen entire Turney Henry for which was tried. If and dent assessment of credibility the of wit Pershing any only liability, have it is ness, weighing or of the evidence. In wrongful imposition disciplinary the of stead, question the relevant is whether resulting proceedings from measures the any there is evidence in the record that Thus, they that initiated. the members support could the by conclusion reached pro of the adjustment committee would be board____ disciplinary the Revocation of by immunity, tected so would and comparable time credits is not to a us, then, Pershing. issue The is conviction, criminal ... and neither the whether the are defendants entitled necessary of support amount evidence summary on judgment immunity grounds conviction, such a see v. Virgi Jackson under the circumstances of this case. nia, 443 U.S. 307 S.Ct. [99 Superintendent prison v. Hill a (1979), L.Ed.2d nor other stan 560] guard happened upon an inmate named greater applies dard than some evidence Stephens was bleeding who from the context. suffering eye. mouth and from a swollen 455-56, (citation Id. at 105 S.Ct. at 2774-75 area, Dirt was three strewn omitted). jogging together. other away inmates were the Applying “some evidence” standard There were other no inmates the area. Hill, of to the facts the held Court that the guard The concluded on these the basis of prison committee’s decision satisfied due Stephens observations that had been beat- process: Also, en prison the other three. medic a disciplinary The board received evi- guard Stephens told the that had been testimony dence in the form of from the charged beaten. The three inmates were guard prison copies Stephens. of his written assaulting with discipli- At the report. That evidence nary hearing guard indicated that the the testified to what he and, guard heard some had what the commotion observed and medic had told innocent, pleaded investigating, him. The inmates discovered an inmate who three Stephens gave evidently just written had been statements that assaulted. The they guard fleeing his three other inmates injuries. had not caused The disci- saw plinary finding together walkway. returned a of down an committee enclosed No guilty imposed a sentence of revoca- other inmates were in the area. adjustment not re- to the does he asserted committee Federal Constitution precludes got Henry. “he logically never even close to”

quire evidence dispute hinging reached This is a classic of fact but the one a any conclusion board____ Although credibility dispute. the classic character- might in this case evidence aspect Turney’s complaint Another of is meager, no direct and there was ized as charged he too with severe an in- identifying one of three evidence affidavit, He offense. states assailant, is not the record mates as the “There’s a substantial difference between findings evidence that so devoid of assault,” sex inappropriate act and sexual sup- disciplinary board were without and he stresses that he did not or “use[ ] arbitrary. port or otherwise bodily the use of harm.” How- threaten[ ] 456-57, 105 at 2775. ever, Id. at we cannot interfere with discre- prison define tion authorities to of- of Hill to application turn to We fenses under their internal rules and to At we hold present case. the outset assign in particular offenses cases. Be- weighing the magistrate erred in we, magistrate, like the cause have not testimony did not know nurse’s that she supplied Turney’s been with a definition of Turney sexual motive had a whether rules, the prison’s offense under we are in the inci against suggestion her earlier magistrate limited to a review of what mo dent had a sexual concluded after he ‘sexual as- “consider[ed] respect resembles tive. In this the case sault’ in its usual context.” We hold that Stephens the other There stated that Hill. he erred that there was no evi- him, and the three inmates did assault adjustment dence commit- prison rejected this version against Turney. tee’s action entirely plausible the incident. It prison of an will out the victim assault a qualified immunity appeal A is limit reprisal testifying of fear of refrain from question ed to the defendant culprit. do not know We litigation should be excused from the other damages. whether this consideration or some money extent the seeks *6 led the immunity conceptu consideration “a claim of is Because present excul ally plain case to discredit the nurse’s distinct from of the the merits In not patory testimony. rights event it is tiff’s claim that his have been violat magistrate’s ed,” nor the to substitute Mitchell v. 472 at 527- Forsyth, our task U.S. 28, 2816, credibility contrary granting immunity 105 S.Ct. at determinations to might the defendant end the lawsuit finding. ultimate The commit not committee’s plaintiff also relief. injunctive earli seeks In accept tee was entitled to the nurse’s case er, present Turney injunctive seeks task under inconsistent statement. Our relief, record, injunctive his is only but claim based is to look at the entire includ Hill alleged due in statement, process on the violation ing there is see whether disciplinary proceeding; he does not support com attack “some evidence” that can prison’s general policies pro of the or finding. mittee’s Therefore, cedures. our decision that Tur In our view contains the record ney damages is not entitled to because is some evidence of sexual assault suf process there was no due violation neces support finding. ficient to committee’s sarily extinguishes injunctive his claim for following regard we evi In this find relief as well. important: Turney most closed dence to be REVERSED and REMANDED with di- nurse; door; he touched the and she complaint. rections DISMISS the way,” play told him that she “doesn’t the time interpret we to mean that at which JONES, concurring part in Judge, Turney making a sexu perceived she to be dissenting part. in Furthermore, Turney’s affida al advance. portion court clear that at I concur in that of the court’s vit to the district makes although granting summary judgment to place, opinion some encounter de- least took

141 qualified guilty major basis of of a misconduct offense un Henry on the fendant view, support some Henry has not less there was evidence to my In immunity. Supreme conviction. The Court did not clearly established constitutional a violated explicitly right articulate this until 1985 respect prison how to when or right with Superintendent, Massachusetts Correc to their may report incidents employees Hill, 445, 472 tional Institute v. U.S. 105 However, the reasons set superiors. 2768, (1985). S.Ct. 86 L.Ed.2d 356 Never below, from the respectfully I dissent forth theless, light pro extensive of the due defendants majority’s conclusion that rights cess outlined the Court quali- Pershing Scroggy are entitled to Wolff McDonnell, supra, prison officials could immunity. fied thought not have it constitutional to convict to answer in only question we need prisoner charge a on a there which was immunity claims addressing qualified no evidence. their Pershing Scroggy whether agree I with the district court that no clearly established have violated actions exists to the conviction in evidence rights of which a reasonable constitutional only The evidence this case. shows that be aware. Harlow v. Fitz person would Turney Henry “touched” Nurse with his 800, 818-19, 102 S.Ct. 457 U.S. erald, hand and knee while she sat at her desk. (1982). 2738-39, L.Ed.2d 396 73 Indeed, Henry acknowledged herself at the failing an Pershing is to conduct accused hearing opinion that she had no as to alleged as adequate investigation of the “touching” moti- assigning charge a that se and for sault vated, and admitted that she was not hurt plaintiffs verely overstates the nature as a result of the encounter but rather was time of the events this “crime.” At the only Contrary to the “insulted.” conclu- sufficiently well established case it was majority, I sion of the do not believe it was to certain mini an inmate is entitled weigh error for the lower court to being process protections before mal due testimony. suggested Nurse never deprived good time credits. v.Wolff report in the incident had a McDonnell, 539, 558, 94 Consequent- sexual motive his actions. (1974). 2963, 2975, 41 L.Ed.2d 935 Certain hearing ly, her statements at the are not at right ly among protections these is the not all inconsistent with her earlier account of charged major a misconduct with Furthermore, I the incident. do believe having first the benefit of offense without Hill, that this case resembles Hill. Wilson, investigation. Ivey v. a faith guard by prison was filed (W.D.Ky.1983). F.Supp. guard three inmates the had ob- Pershing apparently case did no In this running from the scene of an as- served original report than take the of the more *7 report charged the sault. The defendants nurse and then ask for side inmate. The with assault another story charging Turney before with sex- gave a victim of the assault written state- However, assault. as the lower court ual ment that the three had not caused his found, meager investigation failed this Nevertheless, the inmates were injuries. slightest up turn even the indication disciplinary guilty by found board and Accordingly, occurred. sexual assault had by Supreme was sustained Pershing has violated a I would hold that of the victim Court. Hill the statement clearly right, and established constitutional properly rejected the board as moti- immunity. grant qualified him would not case, reprisal. In this vated fear Similarly, Scroggy assault, however, Warden should be it was the of the victim qualified immunity. The claim Henry, report entitled who filed the incident Nurse Further, against Scroggy begin way his review and on the based on with. based during of the ac- herself the ac- approval committee’s handled encounter, absolutely no indi- At the time of this it was there is tions. tual she feared this inmate clearly pro- established as a matter of due cation that I to slightest. Accordingly, even were inmate could not found cess that an agree Henry’s testimony Nurse adjustment committee had contradicted suggestions

earlier the incident Turney’s actions were moti-

vated, I would nevertheless allow the lower testimony

court to afford her substantial

weight pertains subjective it to her im- as

pressions Turney’s intentions.

Finally, my conclusion that Warden

Scroggy qualified is not entitled to immuni-

ty Saxner, Cleavinger is consistent with v. 106 S.Ct. 88 L.Ed.2d 507

(1985). Cleavinger merely holds that an acting adjudicatory capaci-

individual in an

ty is immunity long entitled to so as he has clearly

not violated a established constitu- right. agree

tional Id. at 504. While I Scroggy’s

Warden actions this case were

“adjudicatory,” I do not believe he has af- process

forded this inmate the due to which clearly

he was entitled.

Accordingly, I dissent from the court’s

grant qualified immunity to Warden

Scroggy. Timonere, Machin,

Steven Barbara E. Warner, Doyle, Toledo, Ohio, Lewis & Pa- VANCE, Billy Plaintiff-Appellee, L. Lyden, argued, tricia G. for defendant-ap- pellant. Horton, Cook, H. argued, William Prin- COMPANY, PILOT LIFE INSURANCE gle, Goetz, Detroit, Mich., Simonsen & Defendant-Appellant, plaintiff-appellee. Casualty Lumbermen’s Mutual Fissel, Barry Smith, Toledo, Eastman & Company, Third-Party Ohio, (Lead) argued, Robert J. Gilmer Defendant. third-party defendant. No. 86-3685. RYAN, Before MERRITT and Appeals,

United States Court of Judges, BROWN, Senior Circuit Sixth Circuit. *8 Judge. Argued Aug. 1987. BROWN, BAILEY Judge. Senior Decided Oct. 1987. Defendant-Appellant Pilot Life Insurance (Pilot Life) appeals

Co. the order of the granting judgment summary district court plaintiff-appellee Billy favor of Vance dispute scope over the of Pilot Life’s medical insurance contract with Vance. Pi-