Opposition Brief — Bates v. Walker

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No. 94-158 ~~ SEP 2 3 1994

OFFICE OF THE OLERK

IN THE Sttins,|

Supreme Court of the United States

OcrosBer TerM, 1994

L. BATES,

Petitioner,

against

ROBERT WALKER,

Respondent.

JOHN MAHONEY,

Petitioner,

against

MICHAEL MAYS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF RESPONDENT MAYS IN

OPPOSITION

RicHARD J. UROWSKY

125 Broad Street

New York, New York 10004

(212) 558-4000 i

a a Counsel for Respondent Mays

Scott L. LEssING

DEBORAH GORDON

Of Counsel

September 23, 1994

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a.

QUESTION PRESENTED

Whether an administrative “reversal" of a constitutionally

infirm prison disciplinary proceeding bars any due process

claim arising out of that proceeding regardless of whether the

prisoner has already served the entire improperly imposed

sentence in punitive confinement?

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

A. Factual and Procedural Background

B. The Decisions Below

ARGUMENT

I.

-ij-

TABLE OF CONTENTS

MAHONEY’S CLAIM THAT NEW

YORK PROVIDES A MEANINGFUL

POST-DEPRIVATION REMEDY WAS

NOT RAISED IN THE COURT OF

APPEALS AND IS NOT WORTHY OF

REVIEW BY THIS COURT. .........

THE SECOND CIRCUIT’S

DETERMINATION THAT MAYS

SHOULD HAVE A REMEDY FOR

THE DEPRIVATION HE SUFFERED

IS CONSISTENT WITH THE

DECISIONS OF THIS COURT AND

ALL THE OTHER CIRCUITS. .......

= ae ee oS oe or oe a a

ss i oe oe oe oe oe oe

Gee

-lil- Page

Il. THE COURT BELOW CORRECTLY

DECIDED THAT AN ADMINISTRATIVE

REVERSAL WHICH OCCURS AFTER AN

INMATE SERVES HIS ENTIRE SENTENCE

IN PUNITIVE SEGREGATION IS

POT BEGAIIIAIE ie ccc ete et nees 16

ee eee ee ee ee 17

-jV-

TABLE OF AUTHORITIES

Cases

Alston v. Debruyn, 13 F.3d 1036

oo a. | Serres ee rere

Battle v. Barton, 970 F.2d 779 (11th

Cir. 1992), cert. denied, 113 S.

ae: fe. rrr ee ee ee

Caine v. Hardy, 943 F.2d 1406 (Sth Cir.

1991) (en banc), cert. denied, 112

es ere ree

Cleavinger v. Saxner, 474 U.S. 193 (1985) ...

Daniels v. Williams, 474 U.S. 327 ........

Easter House v. Felder, 910 F.2d 1387

(7th Cir. 1990) (en banc), cert. denied,

Se Shs. Se COE 4 nc eR es es

EEOC v. Federal Labor Relations Auth. , 476

kf ee a eee eee

Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993),

cert. denied, 114 S. Ct. 2112 (1994) ......

FTC v. Grolier, Inc., 462 U.S. 19 (1983) ....

Page(s)

-V- Page(s)

Gilbert v. Frazier, 931 F.2d 1581 (7th Cir. 1991) ... 11

Griffin-El v. Delo, __ F.3d ___, No. 92-3166,

1994 WL 460801 (8th Cir. Aug. 26, 1994) ...... 12

Harper v. Lee, 938 F.2d 104 (8th Cir. 1991) .... 12, 16

Heck v. Humphrey, 114 S. Ct. 2364 (1994) ....... 10

Hudson v. Palmer, 468 U.S. 517 (1984) ...... 5-8, 11,

13, 15

IRS v. Federal Labor Relations Auth. , 494

I ok a sc ep le a eeu we eS 5

Katz v. Klehammer, 902 F.2d 204 (2d

UN hia ee Ta Eo 6, 7

Lowe v. Scott, 959 F.2d 323 (Ist Cir. 1992) ...... 14

Mackey v. Dyke, 29 F.3d 1086 (6th Cir. 1994) ..... 13

Mays v. Mahoney, 23 F.3d 660 (2d Cir. 1994) ... 3, 16

McKinney v. Pate, 20 F.3d 1550 (11th Cir.

I a a ye a te re eee 13

Murphy v. Collins, 26 F.3d 41 (Sth Cir.

We honda cae. Ae oe ae eae 10, 11

Parratt v. Taylor, 451 U.S. 527 (1981) ....... 5-7, 11,

13-15

Patsy v. Board of Regents, 457 U.S. 496 (1982) .... 10

SE a OE OT ORT ee

-Vi-

Patterson v. Coughlin, 761 F.2d 886 (2d Cir.

1985), cert. denied, 474 U.S. 1100 (1986) ....

Ponte v. Real, 471 U.S. 491 (1985) .........

Posters ’N’ Things, Ltd. v. United States, 114

ee Oe CE bk nn sb Wb eo oe ew

Rogers v. Lodge, 458 U.S. 613 (1982) .......

Rowe v. Debruyn, 17 F.3d 1047 (7th Cir. 1994)

reh’g denied and opinion amended, 1994 U.S.

App. LEXIS 10069 (May 5, 1994), petition

for cert. filed, 63 U.S.L.W. 3127 (U.S.

Aug. 1, 1994) (No. 94-249) ............

Russell v. Scully, 15 F.3d 219 (2d Cir. 1993) ...

Simmons v. Chemung County Dep’t of Social

Servs., 770 F. Supp. 795 (W.D.N.Y.), aff'd

without opinion, 948 F.2d 1276 (2d Cir. 1991)

Smith v. Maschner, 899 F.2d 940 (10th Cir.

PE £4 a eA DE SORE EEO WAS

Smith v. Massachusetts Dep’t of Correction,

956 F268 1990 (iat Cir. 1991) . ww we es

Superintendent v. Hill, 472 U.S. 445 (1985)... .

Walker v. Bates, 23 F.3d 652 (2d Cir. 1994) ...

Walker v. Navarro County Jail, 4 F.3d 410

a Ce as ERS 08 OA Nee Oe

Page(s)

-Vli-

Walker v. Sumner, 14 F.3d 1415 (9th Cir. 1994) ....

Wolff v. McDonnell, 418 U.S. 539 (1974) .....

Young v. Hoffman, 970 F.2d 1154 (2d Cir.

1992) (per curiam), cert. denied, 114 S.

CR. 25S CE 6 0 4 ew Swe 4 a8 as

Young v. Kann, 926 F.2d 1396 (3d Cir. 1991) ..

Zar v. South Dakota Bd. of Examiners, 976

P20 GSP Cn Ce. TRE) ne een ees

Zinermon v. Burch, 494 U.S. 113 (1990).....

Statutes

42 U.S.C. § 1983

Articles

Page(s)

passim

William Babcock, Due Process in Prison Disciplinary

Proceedings, 22 B.C. L. Rev. 1009 (1981) ..

a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

L. BATES,

Petitioner,

—against—

ROBERT WALKER,

Respondent.

JOHN MAHONEY,

Petitioner,

—against—

MICHAEL MAYS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF RESPONDENT MAYS

IN OPPOSITION

Respondent Michael Mays submits this brief in

opposition to petitioner John Mahoney’s request that a writ

of certiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit, entered on April 29,

1994, which reversed the district court’s dismissal of Mays’s

claims. The Second Circuit opinion is reported at 25 F.3d

660.

STATEMENT OF THE CASE

A. Factual and Procedural Background

Michael Mays, a prisoner in a New York State

correctional facility, filed this action pro se under 42 U.S.C.

§ 1983, seeking redress for the deprivation of his Fourteenth

Amendment right to due process of law during the course of

a Tier III Superintendent’s Hearing (the "Hearing") held at

the Sing Sing Correctional Facility ("Sing Sing") on July 26,

1990. (MA 5-15.) The pro se complaint explains that Mays

received no notice of the Hearing, no assistance in the

preparation of his defense, no opportunity to attend or

otherwise present a defense at the Hearing, including the

opportunity to call witnesses, and that Mahoney, the hearing

officer, was biased against him. (MA 5-15, 24-25.) None

of the documents reviewed by the hearing officer indicated

that Mays had knowingly and voluntarily waived these rights.

(MA 33-37.) Nevertheless, at the conclusion of the Hearing,

which lasted all of five minutes, Mahoney found Mays guilty

of the charges, which Mays had been deprived of all

opportunity to contest, and sentenced him to forty-five days

in punitive keeplock confinement and loss of certain

privileges. (MA 38-41.)

Mays first learned of the disciplinary proceeding when

the hearing disposition sheet was left on his cell bars after the

conclusion of the hearing. Two days later, he filed an

administrative appeal of his sentence in which he explained

that he had not received notice of the proceeding nor any

opportunity to explain why the charge could not be true.

(MA 10-15.) On September 12, 1990, after Mays had

already served his evitire sentence in segregation, Sing Sing

Superintendent John P. Keane "reversed" Mahoney’s

disciplinary decision for “procedural error." (MA 42.)

B. The Decisions Below

In September of 1992, Mays moved for summary

judgment as to the due process violations alleged in his

complaint. (MA 22-28.) Mahoney filed a c’oss-motion for

summary judgment on April 27, 1993. (MA 29-48.)

Relying primarily on Young v. Hoffman, 970 F.2d 1154 (2d

Cir. 1992) (per curiam), cert. denied, 114S. Ct. 115 (1993),

and Russell v. Scully, 15 F.3d 219 (2d Cir. 1993), defendant

Mahoney argued that the administrative reversal of the

Hearing he had conducted and the expungement of all

references to the sentence he had imposed "cured" any due

process violation he had committed.

By Report and Recommendation dated August 16, 1993

(the "Report"), Magistrate Judge James C. Francis rejected

this argument and recommended that the parties’ cross-

motions be denied. (MA 49-62.) In the Report, the

magistrate judge distinguished between administrative and

punitive confinement and held that "[i]Jf Mr. Mays was

subjected to administrative confinement, then the reversal on

appeal cures any procedural due process violations he

allegedly suffered. However, if the time he served was

punitive, then the reversal on appeal would not cure any

procedural defects, and the defendant would remain

potentially liable for the deprivation." (MA 58.) On October

22, 1993, the district court (Cedarbaum, J.) issued a

Memorandum Opinion and Order which declined to accept

the magistrate judge’s recommendations and instead held that

regardless of whether Mahoney had imposed the forty-five

day sentence “as penalty" and regardless of whether Mays’s

“punishment had ended" before the reversal, the reversal

"cured any procedural defect that may have occurred." (MA

67-69.) Mays timely filed and served his Notice of Appeal

on November 18, 1993. (MA 72-73.)

In a unanimous decision written by Judge Timbers and

joined by Chief Judge Newman and Judge Pratt, Mays v.

Mahoney, 23 F.3d 660, 662 (2d Cir. 1994), the Second

Circuit held that "[t]he court erred in granting Mahoney’s

motion for summary judgment since a _ reversal on

administrative appeal does not cure the wrongful deprivation

of a liberty interest resulting from a due process violation at

a prisoner’s disciplinary hearing." This holding relied

primarily upon Walker v. Bates, 23 F.3d 652 (2d Cir. 1994),

an opinion decided on the same day, which in turn relied on

Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985),

cert. denied, 474 U.S. 1100 (1986), and this Court’s opinions

in Wolff v. McDonnell, 418 U.S. 539 (1974), and Cleavinger

v. Saxner, 474 U.S. 193 (1985). Neither the opinion below

nor any of Mahoney’s prior submissions or arguments

discussed the cases or issues upon which Mahoney now relies

in petitioning this Court.

at AORN en nd

ARGUMENT

I.

MAHONEY’S CLAIM THAT NEW YORK PROVIDES

A MEANINGFUL POST-DEPRIVATION REMEDY

WAS NOT RAISED IN THE COURT OF APPEALS

AND IS NOT WORTHY OF REVIEW BY THIS

COURT.

From the start, the parties and lower courts in this case

have been concerned solely with the character of confinement

pending administrative appeal under New York’s prison

regulations and the possibility of erasing, through such an

appeal, the constitutional claims that arise out of punitive

segregation imposed at a disciplinary hearing that lacked the

procedural guarantees of Wolff v. McDonnell, 418 U.S. 539

(1974). While petitioner made one passing reference to

Zinermon v. Burch, 494 U.S. 113 (1990), in his brief to the

court of appeals (Appellee’s Br. at 41), nowhere did he

discuss the impact of that case on Mays’s claims. Indeed, it

would be far from surprising if the Second Circuit had

"totally ignored" Zinermon (Pet. 12), and the two other cases

that Mahoney now invokes, Parratt v. Taylor, 451 U.S. 527

(1981), overruled in part on other grounds, Daniels v.

Williams, 474 U.S. 327, and Hudson v. Palmer, 468 U.S.

517 (1984), since these cases and the rule for which they

stand were omitted completely from arguments, both written

and oral, before the district court and the court of appeals.

This Court’s “normal practice” is to "refrain from

addressing issues not raised in the Court of Appeals." EEOC

v. Federal Labor Relations Auth., 476 U.S. 19, 24 (1986)

(dismissing writ of certiorari as improvidently granted); see,

e.g., Posters ’N’ Things, Lid. v. United States, 114 S. Ct.

1747,-1755 (1994); IRS v. Federal Labor Relations Auth.,

494 U.S. 922, 933 (1990); FTC v. Grolier, Inc., 462 U.S.

-6-

19, 23 n.6 (1983); Rogers v. Lodge, 458 U.S. 613, 628 n.10

(1982). For the first time in this action, Mahoney seeks

judicial review on the issues of whether his actions were

"random and unauthorized" and whether New York’s

postdeprivation "remedy" is adequate. This Court should

adhere to its normal practice and decline to review such

belatedly hatched arguments.

Indeed, the practice of refusing to address issues not

before the court of appeals is particularly appropriate in this

case because if Parratt and Hudson do apply, which

respondent submits they do not, the Second Circuit has an

internal conflict that it has not had an opportunity to resolve.

See Katz v. Klehammer, 902 F.2d 204, 207 n.1 (2d Cir.

1990); Simmons v. Chemung County Dep’t of Social Servs. ,

770 F. Supp. 795, 798-801 (W.D.N.Y.), aff'd without

opinion, 948 F.2d 1276 (2d Cir. 1991). In Katz, a tenant-

shareholder in a limited profit housing development sued

under 42 U.S.C. § 1983 alleging that the managers of the

development had deprived him of a protected property

interest without due process of law. Citing Parratt, the

Second -Circuit dismissed this claim because any

mismanagement by the defendants was "random and

unauthorized" and because the plaintiff had adequate

postdeprivation remedies in the form of an Article 78

proceeding and a state tort or breach of contract action.

Katz, 902 F.2d at 206-07. Most notably, the Karz court

interpreted Zinermon identically to the cases that petitioner

cites as conflicting with the opinion below. Jd. at 207 n.1

("The defendants here are alleged to have violated various

laws and regulations concerning public housing, and a State

rule directing persons in their position to hold a hearing

before violating any rule or regulation would be senseless. ");

see Caine v. Hardy, 943 F.2d 1406, 1415 (Sth Cir. 1991) (en

banc) (citing Katz), cert. denied, 112 S. Ct. 1474 (1992);

Easter House v. Felder, 910 F.2d 1387, 1401 (7th Cir. 1990)

(en banc) (same), cert. denied, 498 U.S. 1067 (1991); see

also Simmons, 770 F. Supp. at 798-801 (dismissing

procedural due process claim brought under 42 U.S.C. §

1983 by owners and operators of day-care center against

county department of social services because no

predeprivation safeguards would have prevented the loss

alleged and because plaintiffs had adequate postdeprivation

state law remedies). If, as petitioner argues, the Second

Circuit’s implicit interpretation of Zinermon in this case

conflicts with its interpretation in Karz (Pet. 10 n.6), the

proper forum for resolution of such a conflict is the court

where the conflict allegedly arose.

Furthermore, questions about an individual state’s

regulatory scheme and the various types of immunity that it

opts to give its officials are not of national import. Cf

Daniels v. Williams, 474 U.S. 327, 333 n.1 (1986) (declining

to decide whether possibility of sovereign immunity defense

to tort suit under Virginia law renders remedy "inadequate"

under Parratt and Hudson). Indeed, these questions belong

in the first instance to the jurisdiction most familiar with their

significance and application. In this case, that jurisdiction,

the Second Circuit, was not given a chance to consider these

issues now labeled important and worthy of this Court’s ~

review. For this reason alone, certiorari should be denied.

Il.

THE SECOND CIRCUIT’S DETERMINATION THAT

MAYS SHOULD HAVE A REMEDY FOR THE

DEPRIVATION HE SUFFERED IS CONSISTENT

WITH THE DECISIONS OF THIS COURT AND ALL

THE OTHER CIRCUITS.

In 1974, this Court explained that prisoners like Mays

who are deprived of certain specified procedures in their

-8-

disciplinary hearings may maintain actions for damages under

42 U.S.C. § 1983. Wolff v. McDonnell, 418 U.S. 539

(1974). This rule has retained its vitality notwithstanding the

availability of administrative appeals and the possibility of

administrative reversals. See Cleavinger v. Saxner, 474 U.S.

193, 203-07 (1985). Thus, the Second Circuit’s ruling in this

case stands for the unremarkable proposition that Wolff v.

McDonnell remains good law.

Judge Miner in his majority opinion in Walker aptly

observed that this Court, in Cleavinger v. Saxner, had

already faced an almost identical factual situation to the one

presented by Walker, and therefore by Mays. Walker, 23

F.3d at 656-57 (citing Cleavinger v. Saxner, 474 U.S. at

203-07, 211). In Cleavinger, inmates who had successfully

appealed their improperly imposed sentences in disciplinary

segregation were allowed to seek damages for the denial of

due process that had caused them harm. The Court held that

regardless of "the availability of administrative review at

three levels (demonstrated by the relief obtained on review by

these respondents at the first two levels)" qualified and not

absolute immunity was sufficient to shield members’ of the

disciplinary committee from liability for the deprivations they

had caused. Cleavinger, 474 U.S. at 206-07. After citing

Hudson v. Palmer, id. at 203, the Cleavinger Court

explained:

All the committee members need to do is to follow the

clear and simple constitutional requirements of Wolff v.

McDonnell, supra; they then should have no reason to

fear substantial harassment and liability.

Id. at 207; see Walker, 23 F.3d at 656.

Other cases decided by this Court support the conclusion

that state officials who intentionally deprive an inmate of his

due process rights and thereby cause him to suffer punitive

segregation are liable for damages under Wolff. For

-9-

example, in Ponte v. Real, 471 U.S. 491, 498-99 (1985), a

plaintiff-inmate who administratively appealed his sentence of

isolation and loss of good-time credits and succeeded in

having that sentence reduced sought damages under 42

U.S.C. § 1983 for having been denied witnesses at his

hearing. Now-Chief Justice Rehnquist explained:

[t]o hold that the Due Process Clause confers a

circumscribed right on the inmate to call witnesses at a

disciplinary hearing, and then conclude that no

explanation need ever be vouched for the denial of that

right, either in the disciplinary proceeding itself or if

that proceeding be later challenged in court, would

change an admittedly circumscribed right into a privilege

conferred in the unreviewable discretion of the

disciplinary board. We think our holding in Wo/ff meant

something more than that.

Id. at 499 (emphasis added). Similarly, in Daniels v.

Williams, 474 U.S. at 327, the inmate-petitioner, in support

of his claim that negligent conduct can give rise to a due

process deprivation, cited as an example "the failure of a

state to comply with the procedural requirements of Wolff v.

McDonnell." Id. at 333. This Court rejected the petitioner’s

argument but validated Wolff by explaining that "the relevant

action of the prison officials in that situation is their

deliberate decision to deprive the inmate of good-time credit,

not their hypothetically negligent failure to accord him the

procedural protections of the Due Process Clause." Id. at

334.

Indeed, this Court has long assumed that disciplinary

proceedings by prison officials should be subject to external

scrutiny of the kind Mahoney now wishes to evade. It is

precisely for that reason that Wolff requires a prison

administrator to state the evidence upon which he rests his

decision. 418 U.S. at 565; see William Babcock, Due

Process in Prison Disciplinary Proceedings, 22 B.C. L. Rev.

-10-

1009, 1083 (1981). Furthermore, in Superintendent v. Hill,

472 U.S. 445, 454-56 (1985), this Court supplemented Wolff

and held that due process is not satisfied unless a court finds

that the prison disciplinary determination is supported by

"some evidence."

Finally, this Court recently reconfirmed that a prisoner

need not exhaust his available state remedies prior to seeking

damages for a due process deprivation, so long as he is not

challenging the lawfulness of his continuing confinement.

Heck v. Humphrey, 114 S. Ct. 2364, 2369-70 (1994) (citing

Wolff and Patsy v. Board of Regents, 457 U.S. 496, 501

(1982)). Even Zinermon v. Burch, upon which Mahoney

relies so heavily, simply confirms the availability of a due

process claim in this case by citing prison disciplinary

proceedings as paradigmatic situations in which a

predeprivation hearing is constitutionally required.

Zinermon, 494 U.S. at 127-28 (citing Wolff, 418 U.S. at 557-

58). In sum, the opinions below are wholly consistent with

governing precedent, notwithstanding petitioner’s claims to

the contrary.

Nor is there any actual conflict among the circuits in

decisions published after Zinermon. For example, in Smith

v. Massachusetts Dep’t of Correction, 936 F.2d 1390 (Ist

Cir. 1991), the First Circuit relied on Wolff to reverse the

district court’s dismissal of an inmate’s procedural due

process claim arising out of a prison disciplinary hearing

where he was denied both witnesses and documentary

evidence; the inmate was entitled to seek monetary damages

because he “risked the loss of liberty entailed in isolation

time, a sanction which he ultimately received." Jd. at 1398-

1401. The Smith court affirmed the dismissal of the inmate's

malicious prosecution claim, however, because it found that

he had an adequate remedy in state court. Jd. at 1402.

Similarly, the Fifth Circuit, in Murphy v. Collins, 26

F.3d 541 (5th Cir. 1994), recently recognized that,

«}}-

notwithstanding the availability of an administrative appeals

procedure, an inmate who is "penalized by solitary

confinement or loss of good time credit" following a

disciplinary proceeding where his witnesses are excluded may

maintain a due process claim under Wolff. Id. at 543 &

nn.5-6. "Because Murphy was sentenced to [a form of

administrative confinement] he was only entitled to the

process due under the teaching of Hewitt v. Helms." Id. at

543. Notably, the Murphy court applied the rationale of

Parratt and Hudson to bar that portion of the inmate’s

complaint which did not arise out of his disciplinary hearing.

Id. at 543-44; see also Walker v. Navarro County Jail, 4

F.3d 410, 412 (Sth Cir. 1993) (reinstating claim for damages

by pretrial detainee who was placed in segregation following

hearing that failed to comply with Wolff).

The Seventh Circuit too continues to recognize the

vitality of Wolff. In Gilbert v. Frazier, 931 F.2d 1581 (7th

Cir. 1991), for example, the court held that where a state

"has established a definite, unqualified, nondiscretionary

standard for determining when its prison officials may as a

disciplinary measure take away a prisoner’s right to the

relatively greater liberty of ordinary confinement, compared

to the approximation to solitary confinement that is

segregation," the state also must provide a hearing that

complies with Wolff before any punishment is imposed. /d.

at 1582; see also Rowe v. Debruyn, 17 F.3d 1047, 1053 (7th

Cir. 1994) (finding that suspended sentence of full year in

segregation implicated liberty interest but rejecting due

process claim because all Wolff procedures afforded), reh’g

denied and opinion amended, 1994 U.S. App. LEXIS 10069

(May 5, 1994), petition for cert. filed, 63 U.S.L.W. 3127

(U.S. Aug. 1, 1994) (No. 94-249); Alston v. Debruyn, 13

F.3d 1036, 1042 & nn.2-3 (7th Cir. 1994) (distinguishing

procedural requirements of administrative confinement at

issue, including nonadversarial periodic review, from

of

procedural requirements of punitive confinement, which

requires Wolff protections).

Likewise, the Eighth Circuit in Griffin-El v. Delo, __

F.3d ___, No. 92-3166, 1994 WL 460801 (8th Cir. Aug. 26,

1994), recently cited Wolff for the proposition that an inmate

can prevail on a procedural due process claim under 42

U.S.C. § 1983 if he demonstrates that he was deprived of a

protected liberty interest without the constitutionally

mandated processes. Id. at *2-3 n.3. Because the plaintiff

"received adequate process," including notice and an

opportunity to speak and present witnesses to a prison

Adjustment Committee, prior to suffering a sanction, the

court held that the sanction was "the product of informed

decisionmaking" and an additional hearing "would have been

superfluous for purposes of federal constitutional due process

protection." Id. at *3; see also Harper v. Lee, 938 F.2d

104, 105-06 (8th Cir. 1991) (procedural defect in disciplinary

hearing rectified by rehearing at which inmate afforded all

protections but still found guilty; no due process claim

because he “experienced no harm as a result of the initial

denial of his [due process] right.").

Finally, the Eleventh Circuit also continues to require

prison authorities to comply with the due process standards

announced by this Court in Wolff. Bartle v. Barton, 970

F.2d 779, 780 (11th Cir. 1992), cert. denied, 113 S. Ct.

1300 (1993). In Bartle, the court explained that because

"[dJue process ensures fundamental fairness and protects

against arbitrary governmental action" and because an

inmate’s mere presence at his hearing “serves both these

goals," Wolff guarantees that presence unless the inmate’s

removal is logically related to institutional safety or

correctional goals. Jd. at 782-83.

Other circuit decisions that petitioner did not cite in

discussing the alleged “intercircuit conflict” confirm the

unanimity of the view that Wolff continues to govern

it

procedural due process claims arising out of prison

disciplinary proceedings. See, e.g., Walker v. Sumner, 14

F.3d 1415, 1419-20 (9th Cir. 1994) (reinstating inmate’s

claim that improper witness denial at disciplinary hearing

deprived him of due process under Wolff); Ewell v. Murray,

11 F.3d 482, 488 (4th Cir. 1993) ("The holding of Wolff

teaches that before prisoners may be punished for misconduct

. . . they must be given advance written notice of the charges

against them, they must be allowed to call witnesses (if

prison safety so allows), and the factfinders must issue a

written statement as to the evidence relied upon and the

reasons for the disciplinary action."), cert. denied, 114 S. Ct.

2112 (1994); Young v. Kann, 926 F.2d 1396, 1398-1402 &

n.3 (3d Cir. 1991) (holding that inmate who was segregated

following hearing and administrative appeal stated due

process claim under Wolff for denial of documentary

evidence); Smith v. Maschner, 899 F.2d 940, 943-46 (10th

Cir. 1990) (dismissing prisoner’s property deprivation claim

under Parratt and Hudson but reversing dismissal of

disciplinary due process claim under Wolff); see also Mackey

v. Dyke, 29 F.3d 1086 (6th Cir. 1994) ("Parratt does not

require dismissal of all § 1983 actions where the state

provides a postdeprivation process for remedying the alleged

deprivation. . . . [I]t cannot be said that it would have been

either impossible or impracticable for the defendants to have

provided predeprivation process. . . . It was error to apply

Parratt without reference to the limitations the Supreme

Court has placed upon its application.").

Mahoney’s attempt to portray this case as presenting a

square conflict about how to interpret Zinermon should be

rejected for several additional reasons. First, the decisions

that he cites to support this conflict rest solidly on their

individualized and wholly distinguishable facts. See, ¢.g.,

McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc)

(rejecting state employee’s claim that his employment was

-14-

terminated without due process and refusing to examine

motives of allegedly biased decisionmaker since

pretermination hearing contained all requisite procedural

safeguards); Zar v. South Dakota Bd. of Examiners, 976 F.2d

459 (8th Cir. 1992) (rejecting psychologist’s claim that

medical board deprived him of due process by deciding to

adopt hearing officer’s recommendation that state-issued

license be revoked); Lowe v. Scott, 959 F.2d 323 (1st Cir.

1992) (rejecting obstetrician’s claim that his right to practice

medicine was improperly abridged because of

misrepresentations by single member of Hospital Board);

Caine v. Hardy, 943 F.2d 1406 (Sth Cir. 1991) (finding that

anesthesiologist failed to state cognizable due process claim

when his hospital staff privileges were suspended because

allegedly partisan decisionmakers followed state-mandated

procedures), cert. denied, 112 S. Ct. 1474 (1992); Easter

House v. Felder, 910 F.2d 1387 (7th Cir. 1990) (en banc)

(rejecting adoption agency’s claim that state regulators who

allegedly conspired in an attempt to revoke its license

deprived agency of property without due process), cert.

denied, 498 U.S. 1067 (1991). None of these cases involves

a claim by an individual who suffered a loss of liberty

precisely because he was denied all the procedural protections

that the Constitution guarantees to him.

Second, as already mentioned, the Second Circuit

adheres to the same interpretation of Zinermon that Mahoney

urges, that is, where a state actor commits a random and

unauthorized act and thereby deprives an individual of his

liberty or property, there is no procedural due process claim

if adequate state remedies are available. (See Pet. 9-10 &

n.6.) The Second Circuit simply differs with Mahoney but

agrees with the vunanimously-held view that prison

disciplinary hearings require pre- and not postdeprivation

process and that Parratt is therefore inapposite. For

example, in Patterson v. Coughlin, 761 F.2d 886, 890 (2d

m4

Cir. 1985), cert. denied, 474 U.S. 1100 (1986), the court

explained that

[a]llegations of procedural due process violations by

certain individual government employees, as opposed to

direct challenges to state procedures or the lack thereof,

have long been accepted as constituting state action and

forming the basis for a claim under the civil rights

statutes. . . . Unlike the deprivation of property that

occurred in Parratt, here the responsible state officials

who had the power to grant appellant a hearing

obviously knew that appellant was in peril of being

deprived of his liberty interest. In fact, he was given a

hearing, albeit a deficient one. Thus, the deprivation of

liberty was neither "random" nor "unauthorized."

Id. at 891-92 (emphasis in original). Even petitioner

recognized the absurdity of disputing that his actions were

"unauthorized" when he stated to the court of appeals that the

position he urged was entirely consistent with the holding of

Patterson. (Appellee’s Br. at 40-41.)

In sum, as Mahoney implicitly recognized when he

crafted his discussion below, the rule announced in Parratt

and applied in Hudson and Zinermon is not applicable to this

case. Consequently, the split to which petitioner points is a

fallacy, and the resulting absence of any conflict compels

denial of the writ.

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Ill.

THE COURT BELOW CORRECTLY DECIDED

THAT AN ADMINISTRATIVE REVERSAL WHICH

OCCURS AFTER AN INMATE SERVES HIS ENTIRE

SENTENCE IN PUNITIVE SEGREGATION IS NOT

MEANINGFUL.

The only issue presented by this case is whether a state

can punish a prisoner first and provide him with process

later. In Mays and Walker, the Second Circuit brought its

case law into accord with the only other circuit to consider

this issue. See Harper, 938 F.2d at 105-06; see also Young

v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (per

curiam), cert. denied, 114 S. Ct. 115 (1993). The court

correctly decided that the administrative "reversal" of Mays’s

constitutionally infirm prison disciplinary proceeding did not

bar his due process claim arising out of that proceeding since

Mays already had served his entire improperly imposed

sentence in punitive confinement. Mays v. Mahoney, 23

F.3d at 662. To hold otherwise would approve shutting the

barn door after the cow has wandered out. The Constitution

commands a tighter rein on threats to liberty.

fF

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Richard J. Urowsky

125 Broad Street

New York, New York 10004

(212) 558-4000

Counsel for Respondent

Penny Shane

Scott L. Lessing

Deborah Gordon

Of Counsel

September 23, 1994