George Segarra v. M.J. McDade Ralph Edwards

MURNAGHAN, Circuit Judge,

concurring in part and dissenting in part:

The majority opinion makes very much of plaintiff Segarra’s developed reluctance to provide in advance the names of witnesses he wished to call, frustrating employment by the prison officials of the procedure at North Carolina Central Prison of obtaining preliminary written statements from those *1308 witnesses. Segarra’s refusal to provide the name of Julio Herencia prior to the disciplinary hearing is brandished as “manipulative behavior” from which Segarra should not be permitted to profit. Ante, at 1305.

I believe the majority has pointed the finger of blame at the wrong person. The truly “manipulative behavior” which we should condemn is the conduct of the defendant, McDade. The majority opinion accords no treatment whatsoever to McDade’s proven reluctance to permit an inmate to call witnesses on his behalf and thus present live testimony pertinent to his case. Yet the rules promulgated by the state department of corrections clearly contemplated that such testimony is permissible. 5 N.C.Admin. Code 2B, .0203(b)(6).

Undisputed here is the fact that McDade has conducted some 15 to 20 disciplinary hearings per week over a three and one-half year period. Throughout that period, inmate requests for live testimony from fellow prisoners have numbered one or two per week (182 to 364 in total). Yet, as the magistrate found, live witnesses for the prisoner were heard only two or three times during the entire three and one-half year period. McDade has prohibited the presentation of live testimony in no less than 98.3 percent of the cases in which an inmate has sought to call a live witness. In short, McDade has made it a personal rule virtually to prohibit a prisoner from calling a witness to testify on his behalf.

The Constitution prohibits a prison disciplinary official from so undermining the fairness, impartiality, and evenhandedness of the due process to which a prisoner is entitled. And the unconstitutionality of the course pursued by McDade is no less so merely because McDade is accorded discretion to make reasonable judgments on a case-by-case basis as to the relevancy of testimony sought to be presented and as to the effect the calling of a particular witness might have upon legitimate institutional concerns. Discretion is meant to be exercised with respect to a given case and its facts. Discretion is abused when it is blithely cited to justify what is, in fact, a generally applicable, arbitrary decision.

I

Before examining where, in my opinion, the majority errs, I should state my agreement with that portion of the majority opinion which reverses the award of nominal damages.

A plaintiff in a § 1983 action no doubt is entitled to an award of nominal damages if he or she prevails and if the complaint seeks monetary damages. Carey v. Piphus, 435 U.S. 247 , 98 S.Ct. 1042 , 55 L.Ed.2d 252 (1978). 1 Segarra, however, never sought damages. In a day and age when pro se complaints in civil rights actions are accorded liberal treatment, one might think Segarra’s failure to specifically seek money damages is a matter of no great moment. Cf. Gordon v. Leeke, 574 F.2d 1147 (4th Cir.1978), cert. denied, 439 U.S. 970 , 99 S.Ct. 464 , 58 L.Ed.2d 431 (1978) (court’s duty is to interpret pro se complaints liberally). 2 The right to a trial by jury, however, is indeed a matter of supreme moment, as the 7th Amendment makes perfectly clear. Accordingly, we have held that a § 1983 action for damages is a civil action subject to the 7th Amendment and its jury trial provision. Burt v. Abel, 585 F.2d 613, 616 (4th Cir.1978). See also Amburgey v. Cassady, 507 F.2d 728 (6th Cir.1974). The § 1983 defendant facing a potential liability in damages also is entitled to assert whatever immunity defense, either qualified or absolute, that he or she might be able to estab *1309 lish. Briscoe v. LaHue,-U.S.-, 103 S.Ct. 1108 , 75 L.Ed.2d 96 (1983) (absolute immunity); Harlow v. Fitzgerald,-U.S. -, 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982) (qualified immunity).

To exercise the right to a jury trial or to assert an immunity defense that might be available, the defendant must have notice that damages are being sought. The defendants here had no such notice. Rather, nominal damages were awarded by the magistrate sua sponte at the close of the case. The magistrate simply could not award those damages, given the course the case had taken.

II

Where the majority and I part company is on the meaning of due process.

A

In Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974), the Supreme Court sketched the basic contours of a prisoner’s due process rights in a disciplinary hearing:

[T]he 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.... 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.

Id. at 566 , 94 S.Ct. at 2979 . As the whole fabric of the Wolff opinion reveals, the due process clause calls for a prison disciplinary proceeding as fair, impartial, and evenhanded as the circumstances will allow.

The right to call witnesses in one’s defense is a cornerstone of due process, and is basic to the fairness of a hearing. Eg., Bartholomew v. Watson, 665 F.2d 915, 918 (9th Cir.1982). The right, of course, is not an absolute one in the context of prison disciplinary hearings. Baxter v. Palmigi-ano, 425 U.S. 308, 321 , 96 S.Ct. 1551, 1559 , 47 L.Ed.2d 810 (1976); Wolff, supra, at 566 , 94 S.Ct. at 2979 . The state has legitimate interests that should be accommodated in determining what process is due in any given situation. The special circumstances of a prison — among them, the special concerns of institutional security and of correction and rehabilitation — can circumscribe an inmate’s right, in a particular case, to call a witness in his behalf. Wolff, supra, at 566 , 94 S.Ct. at 2979 ; Zaczek v. Hutto, 642 F.2d 74, 76-77 (4th Cir.1981).

The essence of the inmate’s qualified right to call witnesses, however, is that the decision to preclude the calling of witnesses should be made on a case-by-case analysis of the potential hazards which may flow from the calling of a particular person. See Bartholomew, supra, at 918 . See also Hayes v. Thompson, 637 F.2d 483, 487-89 (7th Cir.1980). A per se, generalized proscription against the calling of a certain category of witnesses — without regard to the existence of any legitimate state interest that should be protected in the particular case — is unconstitutional. Bartholomew, supra.

Indeed, a prison disciplinary officer has the discretion to make such determinations on a case-by-case basis and, under our decision in Ward v. Johnson, 690 F.2d 1098 (4th Cir.1982), is shielded from liability when acting within his or her ambit, providing, of course, that no procedural infirmities inhere in the system in which the officer operates. A case-by-case assessment is not too .much to ask from the officer whose constitutional obligation, above all, is to ensure that an inmate receives a fair, impartial, and evenhanded hearing. The discretion accorded to a disciplinary official to exclude evidence that is irrelevant or unnecessary, Zaczek, supra; Ward, supra, is a discretion meant to be exercised with respect to the facts of a particular case. So, too, is the discretion to exclude live testimony in the interests of prison security or correction and rehabilitation necessities. And the discretion to make case-by-case determinations is accorded so that it might be exercised, not so that it might be used to cloak arbitrary, and *1310 preordained, decisions' extending to essentially all cases.

B

When one takes those considerations into account, the unconstitutionality of what has taken place in North Carolina Central Prison is revealed. The facts admit of only one conclusion, the one' reached. by the magistrate below: Segarra was prohibited from calling his fellow inmate to testify not by virtue of a principled exercise of discretion on the part of the defendant McDade but, rather, by the application of an arbitrary policy of prohibiting live testimony. Simply put, McDade, for reasons his own, just does not permit live testimony.

To be sure, McDade cited discretionary reasons when he denied Segarra’s request to call Herencia. McDade rejected Segarra’s proffer of the witness on relevancy grounds. That position, however, must be recognized for what it is: a sham. No reasonable, open, and impartial mind could believe that Herencia’s testimony was irrelevant to the question before the disciplinary committee. Herencia was prepared to admit to his own possession of the drugs and was prepared to establish that it was he, and not Segarra, who threw the napkin with the pills enclosed to the ground. His testimony would have amounted to a complete exoneration of Segarra. 3

Nor can McDade’s reading of the handwritten note from Herencia to Segarra sent prior to the disciplinary hearing — the note which McDade construed as going to Herencia’s “ownership,” but not “possession,” of the drugs — be accepted as the discretionary action of an impartial hearing officer doing his best to rule on the relevance of prof-erred testimony. That note 4 relates to an entire event and must be read with that event in mind. Segarra was charged with possession of drugs found in or near a garbage can. The question that had to be resolved was who put the drugs where they were found. A prison officer testified that he saw Segarra throw the pills to the ground. Herencia’s note, by any reasonable reading, points to what the testimony of Herencia and Segarra would unequivocally tend to prove: Herencia, and not Segarra, put the drugs there; Herencia, and not Segarra, was the person to be charged with possession. Herencia’s testimony, then, was so plainly relevant that the conclusion is inescapable that McDade’s decision to the contrary could only have issued from a mind already made up.

I also find myself reluctantly in disagreement with the majority’s holding that the officer’s discretion to prohibit live testimony in the interests of prison security or undue disruption justified the course taken below. The magistrate found as a fact that calling Herencia to the hearing would have required but a short delay, during which time other disciplinary cases waiting to be heard could have proceeded, and that no *1311 threats to the prison’s security were raised by calling Herencia. Indeed, McDade himself made no mention of security concerns or potential disruption when he chose to refuse to permit Herencia’s testimony.

All that remains, then, is the claim that there is an inherent disruptive effect in allowing prisoners like Segarra to call live witnesses although they refuse to provide those names in advance, thus making it more difficult for the prison authorities to solicit written statements instead. That position, once it is boiled down to its essence, is nothing but a veiled argument that prison officials can prohibit live testimony altogether and limit a prisoner to written statements in his defense. 5 Were that the law, the Supreme Court would have had no occasion to say, as it did in Wolff , 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.” 418 U.S. at 566 , 94 S.Ct. at 2979 (emphasis supplied). There would be no “right” to call witnesses. There would be no need to “qualify” the right to call witnesses. There would be no witnesses at all.

Ill

The unconstitutionality of the process afforded Segarra established, it follows that, from my viewpoint at least, Segarra was entitled to the declaration of his rights sought in his complaint and granted by the magistrate, without regard to any immunity from damages that the defendant McDade might enjoy. Wallace v. King, 626 F.2d 1157 (4th Cir.1980), cert. denied, 451 U.S. 969 , 101 S.Ct. 2045 , 68 L.Ed.2d 348 (1981); Pope v. Chew, 521 F.2d 400 (4th Cir.1975).

Having prevailed in his civil rights action, Segarra should also be entitled to an award of attorney’s fees pursuant to 42 U.S.C. § 1988 . While the majority opinion is not specifically clear on the matter, the intimation therein is that, because an award of attorney’s fees necessitates the paying of some money by a defendant, an immunity defense — whether qualified or absolute — is properly asserted against the award. Ante, at 1303-1304. The law is to the contrary. The immunity defense does not bar a fee award where the plaintiff has prevailed in an action for declaratory or injunctive relief. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 738-39 , 100 S.Ct. 1967, 1977 , 64 L.Ed.2d 641 (1980); Ward v. Johnson, 690 F.2d 1098 , 1116 n. 1 (4th Cir.1982) (en banc) (Winter, C.J., dissenting).

The magistrate awarded Segarra attorney’s fees under § 1988, and in doing so followed to the letter the considerations we set forth in Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir.1978). That seemingly unassailable award, though, even were this dissenting opinion to prevail, would have to be reversed and the issue remanded to the lower court for further consideration. As far as the record reveals, the defendant received neither notice nor an opportunity to be heard on the amount of fees to be awarded. Plaintiff’s affidavits, which were adopted by the magistrate as the basis of the award, were not served upon the defendant. Consequently, the defendant was unable to challenge the facts integral to the fee award.

The defendant is not entitled, in the absolute sense of that word, to a full-fledged hearing on the specific dollar amount to be awarded. See Thomason v. Schweiker, 692 F.2d 333 (4th Cir.1982). Due process does not require an evidentiary hearing in each and every instance that an award of attorney’s fees is to be made. Implicit in the rule of law that makes an evidentiary hearing less than mandatorily required, however, is the assumption that the defendant will be able to challenge the representations of a plaintiff, whether through opposing affidavits or briefs and memoranda. That opportunity, at the very least, must be afforded to the defendant.

*1312 IV

I would reverse the magistrate’s award of nominal damages, and thus concur in the judgment to that extent. Perceiving a plain departure from constitutional imperatives and, indeed, a systematic deprivation of a prisoner’s due process rights occasioned by the defendant’s de facto proscription against live witnesses in defense of a prisoner, I would affirm that portion of the decision below declaring the process afforded Segarra undue and hence unconstitutional and would remand the case for further proceedings relating to an award of attorney’s fees to which Segarra is entitled. In those respects, I dissent.

. Segarra drafted his own complaint, but he was granted court-appointed counsel before trial.

. The full nature of the testimony Herencia would have provided is made clear in a statement obtained from Herencia after the disciplinary hearing, but admitted into the record for purposes of administrative appeal. The statement is worthy of quotation:

I then went into my pocket and pulled out a napkin which had ten (10) white pills, and immediately threw it on the ground by the garbage can. I then proceeded to walk away from the fence, ‘cause I knew Officer Walker was looking at me and was about to sháke me down. Instead, the officer went straight to the garbage can and picked-up the napkin I had thrown on the ground....

As much as I hate to receive a write-up, I can’t stand aside and let an innocent man take a fall for me. I admit to having the ten (10) pills in my pocket, and admit to throwing them on the ground the moment I saw Officer Walker approach me.

. The handwritten note to Segarra, the note which supposedly points only to Herencia’s “ownership” of the pills, reads in part:

Hey Bro,

Sorry about that weak shit that jumped off this morning. I didn’t expect anything big to come off from it, but I guess 1 was wrong. Listen, I’m going to write a note to Capt. Steward about the truth. Maybe when he learns it was my dope and not yours, he might help you get off that lock up and give you your job back. That’s pretty solid of you to keep your mouth shut, but in this case, I promise I won’t let you take the rap for me....

Later Bro,

J.J.

. Once the written statements are taken in evidence, live testimony presumably would be ex-eluded as merely cumulative.