Ricker v. Leapley

HEANEY, Senior Circuit Judge,

dissenting.

I would affirm the district court as to Doug Weber. The record is perfectly clear that Weber learned that the State Crime Laboratory had identified the substance seized from Kevin L. Ricker’s cell as a prescription medication before November 28, 1990, yet Weber failed to promptly notify Warden Leapley of this fact. As a result of this failure, Ricker served thirty additional days in punitive segregation. Ricker’s right to release upon discovery that the substance was not cocaine is evidenced by the fact that Warden Leapley expunged Ricker’s record promptly after learning the true facts. Weber concedes that he was in charge of Ricker and admits receiving the exculpatory information about Ricker. He also admits that it was his duty to inform Warden Leapley of the facts and that he failed to do so. He was unable to give a reason for this failure, stating only that “evidently I didn’t feel it necessary.” On the basis of these facts, the district court properly denied Weber’s motion for summary judgment.

Of course, the possibility remains that Weber may be able to convince a jury at trial that his failure was negligent or inadvertent. In such event, he would be entitled to judgment. However, it is equally likely that Ricker will convince the jury that Weber deliberately kept the report from the warden, knowing that his failure would result in Weber’s continued stay in segregation. In that event, Ricker would be entitled to judgment.

The majority advances two arguments for denying Ricker relief. First, it states that Ricker did not have a due process right to have his disciplinary proceeding reopened on the ground of newly discovered evidence. The majority acknowledges, however, that Hall v. Lombardi, 996 F.2d 954, 959 (8th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 698 , 126 L.Ed.2d 665 (1994), “suggests that Ricker’s due process rights were violated if he had a clear right to release from punitive segregation.” The majority then finds no clear right because, although the substance turned out to be a prescription drug rather than cocaine, possession of that prescription drug violates the same rules that Ricker was convicted of violating when the substance was believed to be cocaine. Thus, it concludes that Ricker would have served the same penalty for possession of contra *1413 band, regardless of whether the substance had been properly identified at the outset.

The majority’s conclusion is undercut by Warden Leapley’s own actions. He expunged Ricker’s record promptly after learning of the mistake. If he had said that Ricker should have continued in segregation because he had violated a prison regulation against possession of this unauthorized prescription drug, Ricker would not have a ease. That is not what happened. Thus, this case clearly falls under the rubric of Hall rather than that of Herrera v. Collins, - U.S. -, -, 113 S.Ct. 853, 860 , 122 L.Ed.2d 203 (1993).

Second, the majority says that Weber did not have a due process duty to disclose the favorable lab test results before Ricker completed his ninety-day sentence. It asserts that Weber’s decision not to disclose the information was a discretionary decision because Ricker had no due process right to have his discipline reconsidered on the ground of newly discovered evidence. In light of my differing conclusion that Ricker had a clearly established right to be released from punitive segregation, I also conclude that Weber’s failure to disclose the information violated that right. Weber admitted his failure to perform this duty, thus leaving only the question of whether the failure to disclose was inadvertent or deliberate. This question should be answered by a jury after trial.

Accordingly, I would affirm the district court as to Weber and remand for a trial.