Russell C. Baker v. Howard N. Lyles, Warden Lawrence Carpenter, Security Chief Major Thompson, Acting Security Chief Lt. Elijah Thomas

SPROUSE, Circuit Judge,

dissenting:

I respectfully dissent. While it is of course well settled that prisoners are entitled to only limited due process when prison authorities undertake to subject them to disciplinary measures, the issue here relates to an aspect of that residual due process — specifically, whether such discipline can be predicated solely on evidence received from an unidentified informant without any effort to establish the reliability of the informant. In my view, even a prisoner’s restricted due process rights require some quantum of evidence that the informant is reliable.

The majority recognizes that every other circuit which has entertained this issue has held that the due process required in these cases, though limited, still necessitates that there be some record documentation of the informant’s reliability. These cases, while noting the dangers inherent in identifying the informant to the accused, yet hold that due process requires the hearing tribunal to show that it made some attempt at establishing informant reliability. Hensley v. Wilson, 850 F.2d 269 (6th Cir.1988); Frei-tas v. Auger, 837 F.2d 806 (8th Cir.1988); Mendoza v. Miller, 779 F.2d 1287 (7th Cir.1985), ce rt. denied, 476 U.S. 1142 , 106 S.Ct. 2251 , 90 L.Ed.2d 697 (1986); McCollum v. Miller, 695 F.2d 1044 (7th Cir.1983); Kyle v. Hanberry, 677 F.2d 1386 (11th Cir.1982); Helms v. Hewitt, 655 F.2d 487 (3d Cir.1981), rev’d on other grounds, 459 U.S. 460 , 103 S.Ct. 864 , 74 L.Ed.2d 675 (1983); Gomes v. Travisono, 510 F.2d 537 (1st Cir.1974).

The majority discounts these cases and the rationale underlying them because of its perception that the Hill rule — requiring only “some evidence in the record” to support the findings of a prison disciplinary tribunal — overrules these holdings sub si-lentio. 1 Superintendent, Massachusetts Correctional Institution at Walpole v. Hill, 472 U.S. 445, 454 , 105 S.Ct. 2768, 2773 , 86 L.Ed.2d 356 (1985). Underlying the majority opinion, therefore, is its implied holding that a statement purported to be relayed from an unidentified informant is “some evidence” under Hill even though there was no effort to ascertain the informant’s reliability beyond receipt of a bald assertion that the informant is reliable. 2

My disagreement with the majority is based on my conviction that evidence of the sort introduced against Baker is essentially no evidence at all. Great positive strides have been made in the modern administration of prisons, but the very nature of “hard core” prisons and those imprisoned there assures that a dark side sometimes lingers. Well-known is the harshness of inprison “justice” administered by prisoners against each other, including infamous means for the settling of scores based on jealousies, gang loyalties, and petty grievances. Unfortunately, there also still may be discrete instances wherein guards seek to retaliate against prisoners if they perceive that regular prison procedures will not adequately redress their grievances.

*935 Here a guard wrote the hearing officer that a confidential informant had advised him that Baker had a hacksaw blade and a jeweler’s string and that the informant later produced such items, saying that he had obtained them from Baker. The guard stated that the informant was very reliable, and the adjustment committee apparently accepted that statement without anything more to establish the informant’s reliability. That, to me, is worse than no evidence. It is an open invitation for clandestine settlement of personal grievances.

As the court observed in McCollum, 695 F.2d at 1049 , “Not all prison inmates who inform on other inmates are telling the truth; some are enacting their own schemes of revenge....” Similarly, in Kyle, 677 F.2d at 1390 , the court noted:

In a prison environment, where authorities must depend heavily upon informers to report violations of regulations, an inmate can seek to harm a disliked fellow inmate by accusing that inmate of wrongdoing. Since the accuser is usually protected by a veil of confidentiality that will not be pierced through confrontation and cross-examination, an accuser may easily concoct the allegations of wrongdoing. Without a bona fide evaluation of the credibility and reliability of the evidence presented, a prison committee’s hearing would thus be reduced to a sham which would improperly subject an inmate accused of wrongdoing to an arbitrary determination.

My view is not, of course, that the informant must be identified to the accused prisoner nor that information regarding reliability must be made available to the accused if that information could enable him to identify the informant. Yet we can look to the opinions of our sister circuits which, in holding that some showing of an informant’s reliability must be made in these circumstances, have articulated various ways of establishing reliability without endangering either cooperation from or the personal safety of confidential informants. Any of those formulations or some variation on them should suffice.

The following passages address the need to balance the competing interests at stake in a prison disciplinary hearing in which the evidence against the prisoner is a statement by a confidential informant.

Helms, 655 F.2d at 502 :

The facts of this case portray a state prisoner subjected to disciplinary sanctions entailing a loss of liberty on the strength of, literally, next to no evidence. Kyler’s testimony before the committee, as characterized in the affidavits before us, contained absolutely no indicia of reliability imputable to the alleged undisclosed informant....

Under the tensions and strains of prison living fraught with intense personal antagonisms, determination of guilt solely on an investigating officer’s secondary report of what an unidentified informant advised him, albeit by affidavit, invites disciplinary sanctions on the basis of trumped up charges. A determination of guilt on such a record, with no primary evidence of guilt in the form of witness statements, oral or written, or any form of corroborative evidence, amounts to a determination on the blind acceptance of the prison officer’s statement. Such a practice is unacceptable; it does not fulfill Wolffs perception of “mutual accommodation between institutional needs and [objectives]” and constitutional requirements of due process.... We therefore hold that when a prison tribunal’s determination is derived from an unidentified informant, the procedures approved in Gomes v. Travisono must be followed to provide minimum due process.

“(1) [T]he record must contain some underlying factual information from which the [tribunal] can reasonably conclude that the informant was credible or his information reliable; (2) the record must contain the informant’s statement [written or as reported] in language that is factual rather than conclusionary and must establish by its specificity that the informant .spoke with personal knowledge of the matters contained in such statement.”

510 F.2d at 540 .

Mendoza, 779 F.2d at 1293 :

The reliability of confidential informants may be established by: (1) the oath of *936 the investigating officer as to the truth of his report containing confidential information and his appearance before the disciplinary committee, McCollum, 695 F.2d at 1049 ; (2) corroborating testimony, Jackson [v. Carlson], 707 F.2d [943] at 948 [7th Cir.1983]; (3) a statement on the record by the chairman of the disciplinary committee that, “he had firsthand knowledge of the sources of information and considered them reliable on the basis of ‘their past record of reliability,’ ” Id. at 948; or (4) in camera review of material documenting the investigator’s assessment of the credibility of the confidential informant.

Freitas, 837 F.2d at 810:

We agree with Freitas that a determination of the reliability of confidential informants must be made. Due process requires that there be some evidence supporting the disciplinary determina-tion_ A bald assertion by an unidentified person, without more, cannot constitute some evidence of guilt.

The Freitas court added in footnote 8:

Hill states that the some evidence standard does not require an “independent assessment of the credibility of witnesses.” Id. [472 U.S.] at 455, 105 S.Ct. at 2774 . We believe consideration of the reliability of confidential informants to be a different matter.

The court went on to quote from the same passage of Helms that I have quoted above.

Kyle, 677 F.2d at 1390 -91:

Balancing these considerations, we believe that where a committee imposes a sanction as severe as the one here, and where the committee’s determination is based upon hearsay information derived from an unidentified informant, minimum due process mandates that the IDC undertake in good faith to establish the informant’s reliability, at least to its own satisfaction. There must be some information on the record from which a tribunal can reasonably conclude that the IDC undertook such an inquiry and, upon such inquiry, concluded that the informant was reliable. The committee should describe the nature of its inquiry to the extent that the committee is satisfied that such disclosure would not identify an informant.

The government argues that it is enough for the IDC to know that the informant has a past record of reliability. That knowledge, however, is not on the record here. Both the investigator’s report and the confidential report indicated that their sources were considered reliable, but neither one explained why. Indeed, there is nothing on the record to show that the IDC made any inquiry into reliability or that it was furnished with any information explaining the trustworthiness and credibility of the “reliable sources.”

(Footnote omitted.)

Not only do I agree with the reasoning of Kyle, Freitas, Mendoza, and Helms, but I am convinced that the rationale of these cases and the very basic right they seek to protect are not overshadowed by the Hill “some evidence” rule. I think this case should be reversed, inter alia, to instruct prison officials in this circuit in this discrete due process area.

. The Sixth, Seventh and Eighth Circuit cases were decided after Hill and expressly rely on it. See Hensley, 850 F.2d at 282 ; Mendoza, 779 F.2d at 1293 ; Freitas, 837 F.2d at 810.

. The majority, in finding “some evidence,” lumps the confidential informant’s statement together with other evidence discovered relating to an escape attempt. However, at the first hearing which imposed punitive segregation on Baker, the adjustment committee relied solely on the confidential informant’s statement. The "facts" established by this first hearing were then used in justifying further disciplinary procedures against Baker.