# Russell v. Scully > Court of Appeals for the Second Circuit · June 4, 1993 · 15 F.3d 219 URL: https://www.frixlaw.com/law-library/cases/6929578 ## Case - **Full name:** Jerome RUSSELL v. Charles C. SCULLY, Superintendent, Bobbie Jo LaBoy, Thomas A. Coughlin, III, J.A. Dempskie, William McGinnis, L. Carey, Wilbur Wright, Captain - **Court:** Court of Appeals for the Second Circuit - **Decided:** June 4, 1993 - **Citations:** 15 F.3d 219; 1993 WL 188677 - **Precedential status:** Published - **Opinion:** On rehearing by Winter - **Judges:** Graafeiland, Mahoney, Winter - **Cited by:** 40 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6929578 ## How later opinions describe it (automated extraction) - finding that questioning prison officials on the believability of confidential informants would reveal only the official’s opinion, while questioning the informants’ record of reliability would elicit “indicia of the informants’ credibility” - finding plaintiff could recover 16 interest for delayed payments under § 1132(a)(3) as make-whole 17 relief ## Opinion text ON PETITION FOR REHEARING Petition for Rehearing Filed June 18, 1993 Decided Jan. 3, 1994 On petition for rehearing plaintiff-appellee seeks reconsideration of our reversal of the denial of summary judgment on grounds of qualified immunity of the appellant. Although we modify our opinion, the petition is denied. WINTER, Circuit Judge: Jerome Russell, plaintiff-appellee, petitions for rehearing, with a suggestion for rehearing in banc, following our decision in Russell v. Scully, 13 F.3d 219 (2d Cir.1993). In that decision, we held that summary judgment should have been granted against Russell in his civil rights action against New York state prison official Captain Wilbur Wright. Familiarity with our prior opinion is assumed. In his petition for rehearing, Russell points out that in addition to confinement in a segregated housing unit (“SHU”), he was deprived of certain privileges while his administrative appeal from the first disciplinary hearing was pending and that this deprivation of privileges was designated as punishment by Captain Wright. Russell also argues that the opinion’s reliance upon Young v. Hoffman, 970 F.2d 1154 (2d Cir.1992) (per curiam), cert. denied, — U.S. -, 114 S.Ct. 115 , 126 L.Ed.2d 80 (1993), is incorrect because in that case the prisoner’s punishment had not begun before the ruling was reversed on appeal. For reasons stated below, we modify our opinion but deny the petition. We are persuaded by the petition that Russell’s detention during the pendency of his appeal was not strictly administrative. The state had the right to hold Russell in administrative confinement in the SHU during the pendency of his appeal no matter how grave an error had been committed in the first hearing, see Hewitt v. Helms, 459 U.S. 460, 466-68 , 103 S.Ct. 864, 868-69 , 74 L.Ed.2d 675 (1983), and, further, his confinement in the SHU after the reversal and pending the second hearing was not unconstitutional. However, the loss of privileges was punitive, and Russell may seek damages for that loss. The damage would be limited to the loss of privileges, however, because confinement in the SHU pending the appeal was harmless. It is clear from the fact that Russell continued to be confined in the SHU after the reversal that Russell would not have been released from the SHU pending the appeal even had Captain Wright not begun the designated punishment. Confinement in the SHU would thus have continued whether or not the punishment began, and Russell thus did not suffer a constitutional harm by the confinement during the appeal period. We do not reach the question of whether due process is violated by the imposition of punishment pending an appeal that redresses any error in the earlier proceeding, although we note that many appellants in the federal criminal system are serving their sentences when their convictions are reversed. The procedure of beginning sentences before an appellate examination of the merits of a conviction has survived due process challenges. See, e.g., McDonald v. Illinois, 557 F.2d 596 , 600 & n. 1 (7th Cir.) (no caselaw supports plaintiff’s claim that imprisonment of innocent person prior to State’s pardon violated due process), cert. denied, 434 U.S. 966 , 98 S.Ct. 508 , 54 L.Ed.2d 453 (1977); see also Crane v. Logli, 992 F.2d 136 (7th Cir.1993) *223 (no due process violation where plaintiff was held in máximum security prison after the reversal of his conviction but prior to issue of mandate from court), cert. denied, — U.S. -, 114 S.Ct. 245 , 126 L.Ed.2d 198 (1993). We also note that we have held that due process is not violated by constitutional error at the trial stage in the ease of a deprivation of a property interest where appeal rights are provided. See Marino v. Ameruso, 837 F.2d 45 (2d Cir.1988). We do, however, alter the basis of our decision. As our earlier opinion noted, the arguments of the parties emphasized the question whether, in the context of prison discipline, inmates had a clearly established right in 1989 to an independent examination of the credibility of confidential informants. We believe that issue, slightly reformulated, is dispositive. It was not clearly established in 1989 (and is not now) that the procedure followed by Captain Wright constituted a constitutionally inadequate independent examination of credibility. Even if there is a due process right to an independent assessment of informants’ credibility — and we' do not regard that issue as foreclosed in this circuit — that right would not entail more than some examination of indicia relevant to credibility rather than wholesale reliance upon a third party’s evaluation of that credibility. Because it was not clearly established at the time of the hearing — or now — that the procedure he used was inadequate, Wright, as a government official, is protected by qualified immunity. Anderson v. Creighton, 483 U.S. 635, 639 , 107 S.Ct. 3034, 3038 , 97 L.Ed.2d 523 (1987); Ying Jing Gan v. City of New York, 996 F.2d 522, 531 (2d Cir.1993). In the instant matter, Wright inquired into the reliability of the informants and did not rely solely upon Sergeant LaBoy’s assessments of the credibility of the confidential informants. The question, “Has this informant a history of reliability?” differs from the question, “Do you believe the informant?” The former seeks to elicit matters of historic fact while the latter calls for an opinion. In response to Wright’s questions, LaBoy indicated the number of years that she had dealt with each informant and stated that each had been extremely reliable. Moreover, Wright knew that LaBoy’s confidential informants had been historically reliable. Those are facts that are indicia of the informants’ credibility upon which a hearing officer might have reasonably relied. In determining whether it was clearly established at the time of the hearing that the procedure followed by Wright was constitutionally inadequate, we look to the caselaw of the Supreme Court and this circuit. Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989). It was not clear in 1989, and it is not clear now, that due process requires a more elaborate assessment of credibility than that made by Captain Wright. Neither due process nor applicable precedent compels that a hearing officer such as Captain Wright conduct personal interviews of confidential informants. See Wolff v. McDonnell, 418 U.S. 539, 566 , 94 S.Ct. 2963, 2980 , 41 L.Ed.2d 935 (1974) (“Prison officials must have the necessary discretion to keep [disciplinary hearings] within reasonable limits and to refuse to call witnesses that may create a risk of reprisal....”). Moreover, there are presently no Supreme Court nor Second Circuit cases that clearly establish the procedures required to make an independent assessment of a witness’s credibility. Appellee has cited only one district court case decided prior to the 1989 hearing that holds that there must be some evidence establishing the credibility of witnesses. Wolfe v. Carlson, 583 F.Supp. 977 (S.D.N.Y. 1984). But see Gittens v. Sullivan, 720 F.Supp. 40, 43-44 (S.D.N.Y.1989) (right to independent assessment “not clearly established in this circuit or by decisions of the Supreme Court”). Wolfe , however, criticized a disciplinary proceeding where an inmate’s punishment was based “solely on the report by a prison official of what an informant claims to have witnessed with no information as to the identity or the reliability of the informant.” 583 F.Supp. at 981-82 (emphasis added). Other cases holding that there is a clearly established right to independent assessment of a witness’s credibility similarly fail to mandate specific procedures for making the assessment. See, e.g., Frietas v. Auger, 837 F.2d 806 , 810 (8th Cir.1988) (some determination of confidential informant’s reli *224 ability must be made); Vasquez v. Coughlin, 726 F.Supp. 466, 471 (S.D.N.Y.1989) (“hearing officer must somehow assess the credibility and reliability of a confidential informant”) (emphasis added). Because Captain Wright did examine and take into account rehable indicia of the informants’ credibility, he enjoys an immunity from this action. The petition is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6929578. Public record. Not legal advice.