Opinion
No. C-01-3237 MMC (PR), (Docket Nos. 24 and 30)
November 18, 2002
ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, currently incarcerated at Pelican Bay State Prison ("PBSP"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his placement in administrative segregation and subsequent discipline violated his right to due process. Alter petitioner amended his petition to allege that he had lost time credits in connection with his segregation, the Court found that the petition, liberally construed, stated three cognizable claims for relief. See Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990) (holding habeas petition is appropriate avenue for remedying constitutional violation that has resulted in loss of time credits because it affects duration of sentence). The Court ordered respondent to show cause why the petition should not be granted, and respondent filed a motion to dismiss the petition. Petitioner has filed an opposition.
A fourth claim was dismissed because it did not state a cognizable basis for habeas relief.
DISCUSSION
A. Placement in Administrative Segregation
Petitioner was placed in administrative segregation on April 10, 1998, as a suspect in an investigation regarding an assault on a prison guard. Petitioner received a classification hearing on April 16, 1998, at which hearing it was decided that petitioner would remain in administrative segregation. The confidential information disclosure forms ("1030 forms") notifying petitioner of the disciplinary charges he was facing were provided to petitioner on May 15, 1998. On June 16, 1998, classification officials disapproved petitioner's continued placement in administrative segregation because petitioner had not been provided the 1030 forms prior to the April 16 hearing. On June 23, 1998, petitioner was provided a new set of 1030 forms. On June 25, 1998, a new classification hearing was held at which it was determined that petitioner would remain in administrative segregation pending investigation of the charges against him. On August 13, 1998, prison officials conducted a disciplinary hearing and found petitioner guilty of conspiracy to commit battery on staff, causing serious injury.
Two of the claims remaining in the petition are that petitioner's placement in administrative segregation on April 10, 1998 violated due process because: (1) the administrative segregation hearing was not held until six days later, on April 16, 1998 and (2) he was not informed of the charges he faced until May 15, 1998, twenty-nine days after the April 16, 1998 hearing. In Toussaint v. McCarthy, the Ninth Circuit held that when prison officials initially determine whether a prisoner is to be segregated for administrative reasons due process requires that they: (1) hold an informal nonadversary hearing within "a reasonable time" after the prisoner is segregated; (2) either prior to or at the hearing, inform the prisoner of the charges against him or the reason segregation is being considered; and (3) allow the prisoner to present his views at the hearing. See Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986).
While a hearing held within 72 hours of segregation constitutes a "reasonable time," it is unsettled whether due process would tolerate a more lengthy delay. See Toussaint, 801 F.2d at 1100 n. 20.
Violation of these procedural due process rights, however, requires only procedural correction. See Raditch v. United States. 929 F.2d 478, 481 (9th Cir. 1991). The remedy for an unfair hearing is another hearing which complies with the procedural protections required by due process. See id. at 480-81 n. 5 (citing Carey v. Piphus, 435 U.S. 247, 266-67 (1978)). In this case, after discovering that petitioner had not been provided notice of the charges prior to the initial hearing, prison officials provided petitioner with a second administrative segregation hearing on June 25, 1998. Petitioner does not contend, and there is no indication, that this second hearing violated due process. Consequently, even if petitioner's April 16, 1998, hearing violated due process, two of petitioner's claims are moot because prison officials have already provided petitioner with the only relief available to him for any such violation — a new administrative segregation hearing. Accordingly, respondent's motion to dismiss these two claims as moot is granted.
The record is clear that the second hearing complied with due process in at least two respects: petitioner was allowed to present his views, and the hearing was held after petitioner was informed of the charges against him.
B. Discipline
The third claim remaining in the petition is that the finding that petitioner participated in a conspiracy to assault a prison guard is supported by no evidence. In Superintendent v. Hill, 472 U.S. 445, 454 (1985), the Court held that the revocation of good-time credits does not comport with the minimum requirements of procedural due process unless the findings of the prison disciplinary board are supported by some evidence in the record. See id. at 455. Put another way, the standard is met "if there was some evidence from which the conclusion of the administrative tribunal could be deduced." Id. (internal quotation and citation omitted). An examination of the entire record is not required nor is an independent assessment of the credibility of witnesses or weighing of the evidence. See id. The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See id. The Court reiterated that revocation of good-time credits is not comparable to a criminal conviction and the amount of evidence necessary to support such a conviction is not required, nor is any standard applicable other than that requiring some evidence to support the finding. See id. at 456.
The Ninth Circuit additionally has held that there must be some indicia of reliability of the information that forms the basis for prison disciplinary actions. See Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). If the information relied upon by the disciplinary committee consists of statements by an unidentified informant, due process requires that the record contain: (1) some factual information from which the committee can reasonably conclude that the information is reliable and (2) a prison official's affirmative statement that safety considerations prevent the disclosure of the informant's identity. See Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987). Reliability may be established by: (1) the oath of the investigating officer appearing at the committee as to the truth of his report that contains confidential information, (2) corroborating testimony, (3) a statement on the record by the chairman of the committee that he had firsthand knowledge of the sources of the information and considered them reliable based on the informant's past record, or (4) an in camera review of the documentation from which credibility may be assessed. See id. at 186-87.
Although respondent does not address the merits of this claim in his motion, the exhibits attached to the petition reveal that the claim is without merit. The evidence upon which the committee relied was the testimony of two confidential informants. See Petition Exh. F (disciplinary report). The first of these informants told prison officials that petitioner recruited younger gang members and paid them with drugs to assault staff, and the second informant stated that petitioner was talking to other inmates in the day room about assaulting staff. Id. The hearing officer deemed this information reliable because the informants had firsthand knowledge of the events; they had provided information to prison officials in the past which had proven to be true; and the information was independently corroborated by other informants.Id. In addition, the hearing officer affirmatively states in the disciplinary report that the identity of the informants was withheld to protect the safety of the sources and to maintain prison security. Id. In sum, although the discipline in this case was based on information from confidential sources, the record contains indicia of reliability as well as a statement that the sources must remain confidential because of security concerns. As a consequence, the discipline satisfies the due process requirement of "some" evidence set forth in Hill. See, e.g., Zimerlee, 831 F.2d at 186-87 (finding due process satisfied when record contains some factual information from which committee can reasonably conclude information was reliable and prison official's affirmative statement that safety considerations prevent disclosure of informant's name); cf. Cato, 824 F.2d at 704-05 (finding due process violation where only evidence implicating defendant placed in disciplinary segregation was uncorroborated hearsay statement of confidential informant who had no firsthand knowledge of any relevant statements or actions of defendant).
CONCLUSION
As discussed above, two of the three remaining claims in the petition are moot, and it is clear from the face of the petition and the attachments that the third remaining claim is without merit. Accordingly, respondent's motion to dismiss is GRANTED, and the petition for a writ of habeas corpus is DISMISSED. Petitioner's third motion for appointment of counsel is DENIED.
In light of these findings, the Court need not address respondent's alternate contention that the petition is untimely.
This order terminates docket numbers 24 and 30. All other pending motions are terminated.
The clerk shall close the file.
IT IS SO ORDERED.