The Only SelfDefense Manual
for Sate & ederal Prisoners
Ofli ing P oven Methods That Wor

By

e

Dear Readers:
I am sure you may "be noticing some content and fonnat changes in this manual compared to others
previously shipped. The reason being, I am getting ready to
. run a larger quantiLy ofmanuals at one time so I
can ship them quicker.
I will also be adding a complete chapter dealing with the Post Sandin issues and court decisions as I
have briefly addressed in Chapter 1 of this manual.
.

Frequent Questions from Readers
.
Q.
If! don't have stamps, cash or a check, can I send you embossed envelopes for payment of the
manual? J.L. Ohio
A.
Yes, certainly. Due to the high cost of printing an mailing the manuals.. I am unable to ship free
manuals anymore. Something of value, stamps, cash, etc can be sent. I do wish some of the guys would stop
saying in Uleir letter(s) "enclosed S15.00 cash" when Uley know nothing is enclosed. I send Utose back
notifying Ule individual that I received nothing.
Q.
My manual was rejected or confiscated by the prison, what can I do? A lot of guys have said this.
A.
Unless Ute prison can show a "legitimate penological interest" in its denial or confiscation, the denial
oCUle legal manual is at least a First Amendment Violation. Ifyou want status on pending litigation against
Ute BOP, see Cort & Parmelee v Benov, et ai, Case # 95-2759-B(AJB) out of the San Diego Federal Court,
Southern Division, District of California. In this case, we currently have at least 20 defendants from Janet
Reno to the mail room staff. I am sure Prison Legal News will keep you updated on its status. Ifyou also
wish to litigate the issue, you can send me a copy of the manual rejection, and request to be put on the mailing
list for all the complaints, motions, etc as they are filed in the court regarding this case. These will not be sent
without a manual rejection notice. I recommend you litigate your own denial at Ule same time my litigation is
going on.
Some ofUle manuals were getting rejected by the prison, and I would have to pay S1.74 each to get
them back from the post office.
Q.
Can I send you copies of my disciplinary reports for advice? D.J, Florida.
A.
No. I don't have time to answer all the mail I get as it is, much less review every report I get. Ifyou
have a valid complaint, the issue is somewhere dealt with in this book.
Q.
Can you help in my criminal appeal? D. L. Arizona.
A.
No, I am not a lawyer, just a guy who spends hours researching Prisoner Rights issues, and I try to
put together infonnation to help in a specific area that I feel is the weakest in source material for Ute prisoner.
Q.
Where do I get the McCaslin Briefs from? M.K., New York.
A.
If you had properly seized in your case, read U.S vMcCaslin, 863 F Supp 1299 (WD Wash 1994).
It's Double Jeopardy; Copy of McCaslin's Briefs, Motions and an update that was published in Prison Legal
News from the Lawyer who won the case SIS.00. Send me S15.00 in stamps, embossed envelopes, cash,
checks or money orders. I do not send any free packages of these motions. The motions are a § 2255 filed to
get the guys conviction vacated because the government seized his house. He won. I also include any
updated infonnntion that may have come out on the issue.
Q.
Can I write to you about a question I have? M.J. Illinois.
A.
ICUle question is relative to prison disciplinary hearings, and it is not typical, but rather a "special
problem", sure. I emmot answer all the letters I get personally. But please make your statement and question
as short, simple and to-the-point as possible. I get a lot of mail and try to deal WiUl the important matters
only, even though I don't get time to answer all of iL.l just don't have the time, and Utis manual already costs
me considerable time and money that Ute"S9.95 doesn't begin to cover. Oh, I figure you arc in prison, so
don't tell me your in prison, or again your name. I figured that out by the envelope and name & address at Ute
lop of the lelter.

How to WIN Prison Disciplinary Hearings

Prison Disciplinary Hearings

How To Defend Yourself And Keep from Being Treated Unfairly When Prison
StaffRegularly Violate Their Own Rules and Your Few Remaining Rights.

Edition 6.5
This edition is the preliminary release to the 7th Edition

11

;.

How to WIN Prison Disciplinary Hearings

How to WIN Prison Disciplinary Hearings

Prison Disciplinary Hearings
How To Defend Yourself And Keep from Being Treated Unfairly When Prison
StaffRegularly Violate Their Own Rules and Your Rights.

Edition 6.5
Written by
Allan Parmelee
2802 E. Madison, Box 168
Seattle, WA 98112
(206) 325-2788

This edition is the preliminary release to the 7th Edition

Also Distributed by
COl/Seattle among other fine self-help legal sources

III

IV

How to WIN Prison Disciplin3't.Hearings

HOW TO WIN PRISON DISCIPLINARY HEARINGS (6.5 Edition). Copyright <0 1994, 1995 1996, by Allan
Pannelee. All rights reserved. Printed in the United States of America, because I could's fmd a cheaper printer
elseware. No part of this publication may be reproduced in any form or by any means, electronic or mechanical,
including photocopying, without wrillen permission in writing from the author, and by providing a reference in the copy,
and supplying this author a copy ofthe published material. Brief quotations embodidied in critical articles and reviews
may be reprinted without permission from the author by mentioning the source and author. If you are a government
agency, atlUiation or other government facility, slate or federal, directly or otherwise, no permission is granted under
any circumslnnces, but in fact denied in advance whatsoever to reproduce, copy or use by any means the reproduction in
any manner any portion(s) oflhis book. Any complaints or references aboutlhis manual to the author should indicate
Lhe Print Run Balch Date so I can refer to the correct version(s) or editions. For information, write to Allan Pannelee or
CDYSenttle, 2802 E. Madison, Suite 168, Seattle Washington, 98112.
Some resemblance to actual individual person's may be coincidenlal. The writers' name appears in several
incident reports used as examples, many ofwhich are true events. This Manual is based mostly on research and current
law. If some references offend anyone, please accept my apologies in advance but they really happened as described
herein.
Print Run: June 21, 1996

Price: $ 15.00 US

ISBN

_

How to WIN Prison Disciplinary Hearings

v

About ti,e Aut/lor
Allan Parmelee. is not a litigation book writer, but a believer in all people being treated
fairly. Since this is Edition 6.5, the preliminary release to the 7th Edition, any comments you
might have would be appreciated. This edition includes updated strategy and case law geared
toward state. as well as federal prisoners. This book is compiled from legnthy research, reviews
ofactual disciplinary reports and actual defenses Parmelee has written and won. The material
found inside is nothing more than materials any person, inside or out could find on their own, if
they were provided reasonable access to adequate law libraries. Not libraries provided by prisons
under order ofa court, but libraries interests in the law. regardless ofwho might benifit from it.

9 dedJ'caie ik's manuallo /hose persons lreaiedunfairly 6y
!yin1 slaJ/mho oJien sloop 10 /he 100JeJ1 ojdirf.y Irick", 10 inlenliona/fy harm /hOle
person", mliOln /hey are supposed.lei a !JoocI{lXQLnple, 6u1 don Z
:7I//an Parmelee, aha 2f7J-9

I want to personally thank several persons for their assistance in editing,
commenting and proof reading the many drafts to the final version of this manual.
Without them, this manual would not have been as beneficial as it is to those who
really need it, and I again, thank them for it. Prison Legal News has been generious by
supplying many articles. research materials and input for this books content I may not
have found without them.
Paul Wright & Dan Pens, Editors of Prison Legal News - Washington State
John Perotti - Lucasville Ohio
Edward Dettinger - Waupun Wisconsin
William Van Poyck - Florida

VI

How to WIN Prison Discipli~.ary Hearings

......-

How to WIN Prison DisciplinlU)' Hearings

VII

Introduction

Winning is more than just defending yourself: careful writing, talent, experience
and the spark that sometimes leaps between your mind and the defensive picture you
are trying to paint.
Most cases are applicable only in the state and federal circuits they are decided
in because most prisons have differing regulations and state constitutions. Always
research and Shepardize the local state and federal decisions cited here, as well as
rapidly changing Circuit and U.S. Supreme Court Rulings.
By focusing on documenting all circumstances and facts surrounding a
violation, as well as organizing your defense, alternatives and attitude, is something
many prisoners don't do, but is a must in being effective. Often, when prison staff
realize you know your rights, and put them in proper form, they'll allow a win at their
level to avoid a federal courthouse loss.
This manual should be used in combination with your state administrative
regulations, to evaluate possible liberty interests, as many states have started excluding
the mandatory language and predicates them.
Overall, I have attempted in this manual to comprehensively cover every aspect
necessary to fend off the often petty and arbitrary disciplinary reports that are filed
against prisoners by every petty minded guard trying to play "gunslinger" with their
pink ink pen. HTW should be used in combination with Dan Manville's Self Help
Litigation Manual, both of which are basic survival tools.

5

1.1

...

VIII

How 10 WIN Prison Disciplinary He8ring~

Table of Contents
1 - After Sandin and its Current Effect on Prisoners
1
New Limitations & Struggles For Prisoners Rights . . . . . . . . . . . . 1
S. CT. Guts Due Process for Prisoners in Sandin v. Conner Analysis
................................................. 1

What Sandin Means to You
4
5
Your Liberty Interest To Not Lose Good Time
7th Circuit Discusses Sandin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2 - DISCIPLINARY RIGHTS OF PRISONERS .. . . . . . . . . . . . . . . . . . . . . .. 10
Prison Rules & Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Conflict in Prison Rules
10
3 - DUE PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Minimum Due Process Requirements . . . . . . . . . . . . . . . . . . . . . . . . . ..
When Due Process is Required . . . . . . . . . . . . . . . . . . . . . . . . ..
When Wolffis Required
Understanding Liberty Interest . . . . . . . . . . . . . . . . . . . . . . . . . .
Elements ofa Liberty Interest . . . . . . . . . . . . . . . . . . . . . . . . . ..
Location ofHearing - Venue
Notice and Time Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Delay in Hearing States Claim . . . . . . . . . . . . . . . . . . . . . . . ..
Harmless Errors ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Right To Assistance of Counsel
Right to an Impartial Hearing Panel

13
13
13
13

14
16
17
17
18
19
19
21

4 - WITNESSES
23
Testifying for Yourself & Calling Witnesses
23
Rightto Remain Silent and its Effect
23
Compelling Witnesses to Testify
24
Witnesses At a Different Institution
25
Witness Affidavits
25
Right to Cross Examine Witnesses . . . . . . . . . . . . . . . . . . . . . . . 25
Prisoners Testimony Against You . . . . . . . . . . . . . . . . . . . . . . . . 26
Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. Your Defense Against Double Jeopardy
27
B. The Prison's Attack On You With Double Jeopardy
··.·
28
Necessity of Miranda Warnings
29
5 - EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Disciplinary Evidence Must be Reliable. . . . . . . . . . . . . . . . . . . . 31
Access to Evidence. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 31
Evidence in Drug Tests
32
Sweat Patch Drug Testing
33
Test Result Arguments
33

How to WIN Prison Disciplinary Hearings

IX

Chain ofCustody .. , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Evidence In Urinalysis Drug Tests
34
Legal Arguments to Drug Test Results
35
Positive Drug Test Results
37
Detection Periods for Selected Drugs . . . . . . . . . . . . . . . . . . . . . 38
Providing Urine Samples
39
Evidence In Alcohol Testing
39
Evidence In Polygraph Tests
40
Hearsay Evidence
40
Right to Present Evidence
41
Admissible Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Burden OfProof- "Intent" To Break A Rule
42
6 - STANDARD OF PROOF REQUIREMENTS TO JUSTIFY DECISION
ProofRequirements For Findings ofGuilt or Innocence
Disciplinary Findings Must State Evidence Relied on to Base Finding of
Guilt
Proof in Drug Tests

44
44
44
46

7 - RIGHT TO WRITTEN DECISION
48
Transcripts or Recorded Record . . . . . . . . . . . . . . . . . . . . . . . . . 50
8 - RIGHT TO APPEAL
BOP Prisoners Must Exhaust Administrative Remedies
Right to Appeal and Court Review ofDisciplinary Finding . . . . .
Emergency Appeals and Temporary Conditions
Specific Procedures When Infracted (Chapters 8 - 20)

51
51
52
55
56

9 - EVENTS of INCIDENTS - GATHERING EVIDENCE
56
BP-9's (Administrative Complaints) To Force Evidentiary Disclosure .. 56
10 - INVESTIGATING OFFICER QUESTIONS YOU
58
Investigation Begins Against You . . . . . . . . . . . . . . . . . . . . . . . . 58
Your Rights under the Constitution
60
Consent Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Use'ofEvidence Seized in a Search
60
11 - EVALUATING YOUR INCIDENT REPORT
Analyze your report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Arguments for Your Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The "I didn't do it" Argument
The "I didn't violate any rules or regulations" Argument
The "You don't have proof'Argument
The "Admit and Plead for Mercy" Argument
The "Expired Time Limitations" Argument
Presenting Your Defense

62
62
63
64
64
65
66
66
66

x

How to WIN Prison Disciplinary Hearings

12 - UNDERSTANDING UDC (Unit Disciplinary Committee)

68

13 - DEFEND YOURSELF AT UDC (Pre Hearing)

69

14 - UDC to YOUR BENEFIT (pre & Minor Hearings)

71

15 - STAFF REPRESENTATIVES and WITNESSES
72
StaffRepresentative
72
Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
16 - UNDERSTANDING DHO (Disciplinary Hearing Officer)

76

17 - APPEARING BEFORE DHO
77
Attitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
18 - WRITING YOUR DEFENSE - SAMPLES
Writing Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Your Written Statement
Questions for Witnesses (in Writing) . . . . . . . . . . . . . . . . . . . . . . . . . . .
Defenses Samples for Popular Incident Reports
.........
Checking Your Written Defense
Re-Hearings After Appeal

79
79
80
85
87
88
89

19 - APPEALS to UDC (pre or minor hearings)

91

20 - APPEALS to DHO (major offenses)

92

21- WRITING YOUR STATE DEFENSE OR HEARING APPEAL
Good Writing Is Persuasive Writing
Appellant's or Petitioner's Opening Brief-Selecting Issues and Order of
Presentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Writing a Defense Argument
Federal Administrative Appeals
Good Writing Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Simple Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Complex Appeal

93
93

22 - STAFF RETALIATIONS VIOLATION OF LAW
Retaliation from Staff
"
Things You Cannot be Infracted For
Infraction Illegal When In Retaliation . . . . . . . . . . . . . . . . . . .
Retaliatory Infraction lllegal When StaffLied.... Againl .....
Retaliatory Discipline Violates Due Process . . . . . . . . . . . . ..
Retaliatory Infractions Dlegal For Filing False Charges. . . . . .
Grievance Retaliation Unlawful
No Immunity for Retaliatory Discipline

94
96
96
96
97
98

104
104
lOS

106
106
107
108
109
109

How to WIN Prison Disciplinary Hearings

SelfHelp Legal Resources

XI

, 111

23 - LEGAL BASICS and COURT OPTIONS
Why Most Prisoners Lose In Court
Bivens (§1983)
Elements of a Bivens Action . . . . . . . . . . . . . . . . . . . . . . . . . .
,
Comparisons to a Bivells (§1983)
Comparing Bivens to Federal Tort Claims Act
Elements ofa Tort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Immumty
. From S'
Ult.......................................
Necessary Elements to a Lawsuit
,
Claims for Money(§ 1983) vs ReliefFrom Action (Habeas)
,
Frivolous & Unreasonable Claims
Going to Court

112
112
112
113
113
114
114
114
115
115
116
116

Prison Litigation Reform Act (PLRA) is now Codified at 28 U.S.C. § 3626 .. , 117
Prisoner Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Preliminary Injunctions Limited by PLRA . . . . . . . . . . . . . . . . . . . . . . . 118
PLRA Denies Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
PLRA Limits Consent Decrees
, 119
PLRA Discourages and Denies Special Masters . . . . . . . . . . . . . . . . .. 119
The Civil Rights of Institutionalized Persons Act: (CRIPA) Codified as 42
U.S.C. § 1997
119
PLRA Limits Attomeyts Fees and Punishes Lawyers for Representing
119
Prisoners
PLRA Limits Recovery for Damages
, 120
PLRA Limits Prisoner Appearances at Court Hearings
, 120
PLRA Provides Defendants Need Not Reply to Complaint and No Relief
Can be Taken
, 120
PLRA Limits Filing In Forma Pauperis
, 120
PLRA Directs Payment ofDamage Awards for Restitution Orders
, 121
PLRA Requires Victim Notification ofDamage Awards So They Can
Benefit From Your Further Loss
, 121
PLRA Provides Loss ofEamed Time Through An Unfair Provision for
P:ison Time for Filing a Complaint Deemed Frivolous
121
APPENIJIX - A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Federal BOP Violations & Sanctions
Misc. Allowable Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
100 - Series:
PROHIBITED ACTS AND DISCIPLINARY SEVERITY SCALE
200 - Series
300 - Series
400 - Series
SANCTIONS FOR REPETITION OF PROHIBITED ACTS WITHIN
SAME CATEGORy

123
123
123
125
125
126
127
128
129

XII

How to WIN Prison Disciplinary Hearings

SANCTIONS BY SEVERITY OF PROHIBITED ACT, WITH
ELIGIBILITY FOR RESTORATION OF FORFEITED AND
WITHHELD STATUTORY GOOD TIME
APPENDIX - B
Table Of Authorities
Cases
Constitutional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Regulations
Statutes and Laws
Rules OfCourt Procedure
Miscellaneous

130
131
131
131
131
131
131
131
131

I - After Sa"di" and its Current Effect on Prisoners

1 - After Salldin and its Current Effect on Prisoners
New Limitations & Struggles For
Prisoners Rights
The Supreme Court decided in JWle
1995 Sa"di" v COIII,er, 63 L.W. 460 I; liS S.Ct.
2293 (1995). As a Result, drastic new limitations
and confusion or excuses in the lower courts
tmderstanding of the law will be exhibited in poor
examples of justice. It has opened a pandora's
box for gross staff abuse of prisoner's rights.
Those prisoners who decline for what ever reason,
to stand up for their rights are losing rights as fast
as I can keep printing these manuals. I hate to
keep repeating myself Un-oughout this manual, but
the Supreme Court has now decided, you are
going to have a "higher burden of proof of
established rights" will be required in Sa"di" v
Calmer, 63 L.W. 4601; liS S.Ct. 2293 (1995).
Reprinted below is Prison Legal News, August
1995 review of the Sandi" decision.

S. CT. Guts Due Process for
Prisoners in Sandin 1'. Conner
Analysis
by Paul Wright
[Repri"ted with penllissioll from PriSOIl Legal
News]
On Junc 20, 1995, the supreme court
issued its five to four 1111ing in SOlidi" v. Co""er.
The ruling appears to be the most devastating
legal setback prisoners have suffered in the
Supreme Court since Tumer v. Safley' was
decided in 1987. In doing so the court abandoned,
without specifically overruling, more than a
decade of cases involving state created due
process liberty interests affecting prisoners.
The case originally arosc when Demont
Comer. a Hawaii state prisoner, was infracted for
allegedly cursing at a guard during a strip search.
He was infracted and the disciplinllJY hearing
committee refused Comer's request for witnesses
claiming they were unavailable due to staff
shortages and Conner's transfer to another facility
within the prison. Conner was found "guilty" and
sentenced to 30 days segregation. He
administratively appealed and nine months later,
after he had already served the 30 days
segregation imposed, the infraction was expunged
Tumer v Safe/ey, 482 US 78.
t 07 S.Ct. 2254, 96 L Ed 2d 64 (1987).

as WlSUpported by the evidence. Conner filed
suit in federal court Wlder 42 U.S.C. § 1983
clmmmgthathisrightrop~urald~process

had been violated.
The district court granted summary
judgment in favor of prison officials. The court
of appeals reversed and remanded the case at
Co""erv. Sakai. 15 F.3d 1463 (9th Cir. 1993),
PLN. July. 1994. The appeals court ruled that
Conner had a due process liberty interest in
~g free from disciplinary segregation and
that there was a disputed question of fact as to
whether Conner had received a hearing
comporting with the due process requirements
ofWo!ffv.McDo""ell, 418US 539 (1974). The
appeals court based its ruling on the fact that
Hawaii prison regulations instruct disciplinary
hearing committees to fmd prisoners "guilty"
only when the charge is supported by
"substantial evidence." (The supreme court has
held that federal d~ process only requires
"some evidence" in the record to support a
finding ofguilt in a prison disciplinllJY hearing.)
The appellate court held that the rules in
question created a due process liberty interest
whereby Conner could not be segregated absent
"substantial evidence" of misconduct. It also
held Conner was entitled to call wilnesses at the
hearing. The supreme court has now reversed
that ruling.
Chief Justice Rehnquist wrote the
majority opinion. joined by justices O'Connor,
Scalia, Kennedy and Thomas. Rehnquisl begins
his opinion discussing Wolff, which held that
prisoners have no federal due process right
credit for good behavior in prison, "but that the
statutoI)' provision created a liberty interest in a
'shortened prison sentence' which resulted from
good time credits, credits which were revocable
only if the prisoner was guilty of serious
misconduct." The supreme court held that this
liberty interest was one of"real substance" and
set forth minimal procedures that must be met
before such credits can be revoked. Rehnquist
states: "Much of Wolff's contribution to the
landscape ofprisoners' due process derived not
from its description of liberty interests, but
rather from its intricate balancing of prison
management concerns with prisoners' liberty in
determining the amoWlt ofprocess due."

2

How to WIN Prison Disciplinary Hearings

protections that may be of quite a different
In Meachum v. Fallo, 427 US 215
nature."
(1976) Ule court ruled iliat il was pcnnissible lo
In abandoning Hewill the court claims
transfer prisoners from one prison to another, even
that it had two undesirable effects. First, it
ifthe conditions ofconfmement were dramatically
created dis-incentives for states to codifY prison
worse at the new prison, because the transfer was
policies in the interests of unifonn treatment
within the range of eustody which the conviction
(after all, they might have to follow the very
has authorized the state to impose. The court
rules they have promulgated). The court stales
distinguished Meachum from Wo{ffbecause no
that such policies don't only benefit prisoners
state law or rule limited the discretion of prison
officials in the fonner, while in the latter a stale
but also the staff and are designed to instruct
statute had created a liberty interest in good time
employees how to exercise the discretion vested
credits.
in the prison system. "The approach embraced
The court discusses subsequent cases,
by Hewill discourages this desirable
mosUy decided in the 1980's, where Ute court
development: ·Stales may avoid creation of
discussed state created liberty interests, Hewill v.
'liberty' interests by having scarcely any
He/ms 2, O/im v. Wakillekolla,' KelllucJ..y DOC v.
regulations, or by conferring standardless
Thompsoll. I The court has now abandoned that
discretion on correctional personnel." Ofcourse,
no evidence is cited to support this rather broad
whole approach with the following criticism. "By
shifting Ute focus of the liberty interest inquiry to
assertion The court claims that promulgation of
one based on the
policies helps ensure that similar treatment is
language of a particular
given
in
similar
regulation, and not the
situations.
However,
Without any type ofjudicial remedy as
nature
of
the
absent any type of
deprivation, the Court
described in Salldi", how is this laudable
judicial remedy how is
goal of "exercising discretion" and the
encoW'aged prisoners to
this
laudable
goal
comb regulations in
institution avoiding the creation ofliberty
supposed to be achieved
interest supposed to be achieved or enforced?
search of mandatory
or enforced? Given the
language on which to
Given the wide body oflitigation on this
wide body oflitigation on
base entitlements to
issue it is readily apparent that prison
this issue it is readily
various state conferred
officials often do not follow their own rules,
apparent that prison
privileges. Courts have,
while holding prisoners to them.
officials often do not
in response, and not
follow their own rules,
altogether illogically,
while holding prisoners
drawn negative inferences from mandatory
to them.
language in the text of prison regulations."
"Second, the Hewill approach has led
Rehnquist states: "Such a conclusion may be
to Ute involvement offederal courts in the day to
entirely sensible in Ute ordinary task ofconstruing
day management of prisons. often squandering
a statute derming rights and remedies available to
judicial resources with little offsetting benefit to
the general public. It is a good deal less sensible
anyone. In doing so, it has run counter to the
in the case of a prison regulation primarily
view expressed in several of our cases that
designed to guide correctional officials in the
federal courts ought to afford appropriate
administration of a prison. Not only are such
defcrenr.e and flexibility to state officials trying
regulations not designed to confer rights on
to manage a volatile enviromnent." [Editor's
irunates, but th~ result of the negative implication
Nole: This ruling was written by chief justice
jurisprudence is not to require the prison officials
Relmquist, who also authored the majority
to fonow the negative implication drawn from the
opinion in Hewitt v. He/ms.]
regulation, but is instead to attach procedural
The court held "The time has come to
return to the due process principles we believe
were correctly established and applied in Wolf
2
and Meachum. Following Wolf[. we recognize
Hewett v He/ms, 459 US 460,
that States may under certain circumstances
103 S.Ct. 864, 74 L.Ed.2d 675 (1983).
create liberty interests which are protected by
J
O/im v Wakillekolla, 461 US
the Due Process Clause... But these interests
238,103 S.Ct. 1741,75 L.Ed.2d 813 (1983).
will
be generally limited to freedom from
4
KemucJ..y DOC v Thompsoll,
restraint which, while not exceeding the
490 US 454, 109 S.Cl 1904, 104 L.Ed.2d 506
sentence in such an unexpected manner as to
1989.
give rise to protection by the Due Process

I - After Salldill and its Current Effect on Prisoners

3

Clause ofits own force, see, e.g. Vilek, 445 US at
segregation did not work a significant disruption
493 (transfer to a mental hospital), and
in his environment.
Washillgtoll, 494 US at 221-222 (involWllaly
The court also held the possibility that
administration ofpsychotropie drugs), nonetheless
the Hawaii parole board might consider the
imposes atypical and significant hardship on the
infraction in denying Conner parole was too
inmate in relation to the ordinary incidents of
attenuated to require due process. "We hold,
prison life."
therefore, that neither the Hawaii prison
The court rejected Conner's argument
regulation in question. nor the Due Process
that any state action taken for punitive purposes
clause itseU: afforded Conner a protected liberty
encroaches on a liberty interest protected Wlder
interest that would entitle him to the procedural
the due process clause. The court distinguished
protections set forth in Wolff. The regime to
this situation from other cases holding pretrial
which he was subjected as a result of the
detainees and school children cannot be pWlished
misconduct hearing was within the range of
without violating the due process clause. "The
confmement to be nonnally expected for one
punisJunent of incarcerated prisoners,.. . serves
serving an indeterminate term of 30 years to
life."
different aims than those fOWld invalid in BellJ and
Itrgraham'..... It effectuates prison management
To get a full Wlderstanding of the
implications of this ruling readers should read
and prisoner rehabilitative goals.... Discipline by
prison officials in response to a wide range of
the two dissenting opinions. In one, by justices
Ginsburg and Stevens, they concluded that
misconduct falls within the expected parameters
of the sentence imposed by a court oflaw." In its
Conner had a liberty interest Wlder the
constitution and Hawaii prison rules, to avoid
haste to strip prisoners of the fourteenth
amendment's proteclion, the court ignored the fact
disciplinary confmement. Justice Breyer's
thatlhe pwpose ofdue process protection is not to
dissent goes into greater detail of what is wrong
say prison officials cannot pWlish prisoners guilty
with the majority ruling. He makes the obvious
of misconduct. but to provide procedures that
observation. noted io prior supreme court
allow for a somewhat reliable means of assuring
decisions, that segregation is a major change in
a prisoner's environment. He notes that the
the prisoner pWlished is in fact guilty of
majority's ruling is going to create quite a bit of
something.
"This
case,
though
Wlcertainty in the lower courts
as previously seUled law is
concededly pWlitive, does not present
Supreme Court Does
coiled into question. The new
a dramatic departure from the basic
Not
Like The Idea That
conditions of Conner's indetenninate
standards are nol elaborated nor
Prisoners Have State
examples shown to guide the
sentence." While prior supreme court
Created Rights.
lower courts in applying this
decisions had held, without deciding,
Sandin v Conner. 63 1..W.
new
standard
confmement
that
segregated
4601; liS S.Ct 2293 (199S)
automatically triggers due process
The majority opinion.
protection, it had never becn ruled on
which is now the law of the
by the supreme court in an argued
land, essentially strips prisoners
ofdue process protections that can be enforced
case. "We hold that Conner's discipline in
in federal court. There is going to be quite a bit
segJegOtcd confmcment did not present the type of
of confusion in the 10",cr courts based on this
atypical, significant deprivation in which a state
might conceivably create a liberty interest." This
case. While it docs not stale that Wolff is 00
was because disciplinary segregation conditions
longer applicable to those disciplinary hearings
that do oot involve a loss of good time i.e.
were identical to those of administrative and
protective custody. Rather than conclude that
extending the sentence to be served in prison,
"administrative" and "protective" segregation
lower courts may interpret it to mean just that.
Especially since no prior cases are explicitly
were pWlitive the court draws the opposite
conclusion to hold that disciplinary segregation is
overturned. With the existence of Morales v.
"normal." The court stated that Conner's
Califomia Departme"t oj Correctio,,' where
the court, in a ruling by Justice Thomas, held
7

Bell v. Wolflsh, 441 U. S.

520, 99 S.Ct. 1861,60 L.Ed.2d 447 (1979).
6

S. 651 (1977).

Ingraham v. Wright, 430 U.

Morales v. Califomia
Departmellt ojCol7Y!ctio", 57 CrL 2021,
April 26, 1995, 1995 WL 236551 (US)~ also
see Morales vCalifol7lia DOC, 16 F3d 1001

(9th Cir 1994).

4

How to WIN Prison Disciplinary Hearings

guard during a strip search. He was infracted
that extending a prisoner's parole eligibility
and the disciplinary hearing conunittcc refused
hearings aller he is convicled docs not violate the
Conner's request for witnesses claiming they
ex post facto clause. One of the reasons cited was
were
Wlavailable due to staff shortages and
the desire not to get the federal com1s involved in
Conner's transfer to another facility within the
whether increasing punishment after conviction is
prison. Conner was fOWld "guilty" and
an ex post facto violation or not. The same
sentenced to 30 days segregation. He
concern. to decrease the ability offederal com1s to
administratively appealed and 9 months later,
enforce prisoners constitutional rights with a
after he had already served the 30 days
resulting lesser caseload, seems to be the driving
segregation
force in this case
imposed,
the
as well.
infraction
was
Quoting Salldill 812300, com1s refonnulated the
Old time
. expWlged
as
working definition of Liberty Interest away from the
prisoners have told
wording of prison regulations and toward the hardship
WlSUpported by
me of the pre Wolff
caused by the prison's challenges action relative to
the
evidence.
days
when
"basic conditions" oflife as a prisoner. In that
Conner med suit
prisoners would be
refonnulation, the court dermed Liberty Interest as
in federal court
swnmoned to the
"freedom ofrestraint which ... iniposes atypical and
W1der 42 U.S.C. §
captain's office
significant hardship on an inmate in relation to the
1983 claiming
and told "you're
ordinary incident of prison life."
that his right to
guilty
of
Mitchell v Dupnik, 95 C.D.a.S. 7572(CaIif. App Ct 1995)
procedw"al due
misconduct and
process had been
you're going to the
hole
for
six
violated.
months," and that was that. Under this roling,
The Supreme court basically placed the
prison officials would be well within their
burden on the prisoner to find actual state of
federal laws that require the prison to provide
discretion to do just that. See: Salldill v. Caillier,
63 LW460I (1995). Readers will note that due to
them with any resemblance ofDue Process. It
our lead time and a backlog ofcases the next few
went to further say that prisoners have no
"constitutional right to due process in prison."
issues ofPLN will be reporting a number of prePrisoners only have a due process right. IF
Salldill cases dealing with liberty interests and
statute or policy exists granting that right. Of
disciplinary hearings. It is too soon to tell how
course, most states are now re-writing their
valid these cases are, or will be, in light of this
statutes and policies, removing prisoners' most
ruling. We will report lower court rulings on the
basic rights. Some states have gone on to
matter as they occur.
criminalize
repeated disciplinary infractions,
[Reprillted witll penllissioll from Prisoll Legal
many
minor
offenses
such as wasting resources
News]
or not informing the warden you want to get
married.
What Samlin Means to You
In recognizing due process rights of
prisoners,
the court would otherwise be forced
The SaJuJi" case starts out with the usual
to recognize thal the purpose of due process
dismissed, reversed and dismissed, reversed and
protections was not to say prison officials cannot
won scenario that all jailhouse lawyers experience
punish
prisoners guilty of misconduct. but to
at one time or another. (Caillier v Saki, 15 F3d
provide
procedures requiring a recognizable
1463 (9th Cir -1993). As usual, the government
means
of
assuring the prisoner punished is
appeals, crying when they lose and sometimes
actually
guilty
ofsomething.
prevails because they can exhaust the other person
To fully Wldersland the case, the
resoun:es, winning, not on merit, but because
dissenting opinions must also be read. Justices
endless deep pockets. With Chief Justice
Ginsburg
and Stevens go into detail on what
Relmquist who wrote majority opinion, and
they thought, and why Co,,"er had demonstrated
justices O'Connor, Scalia, Kennedy and Thomas
legitimate due process protections. This ruling
adding their 2 cents. Chief Justice Relmquist
will creale a lot of instability in the lower com1s
abandoned Hewill v He/ms, 459 US 460, 103
discretionary fimction. While Calmer does nol
S.CL 864, 74 L.Ed 2d675 (1983), who also wrote
stale that Wolffis no longer applicable to those
the majority opinion, granting some prisoners
disciplinary hearings that do not involve a loss
rights.
of
good time i.e. extending the sentence to be
Demont Conner, a Hawaii state
served
in prison, lower com1s may interpret il to
prisoner, was infrocted for allegedly cursing at a

1- After Sandi" and il.. Current Effect on Prisoners

5

mean jusllhat. Especially since no prior cases are
to be retrospective and had to disadvantage the
explicitly overtwned.
offender.
I have not applied Co""er to this
The elements of Wolff 0 detail a state
manual. because we still don't know how the
statute as created providing a right to good-time
lower courts will apply it. Based on new cases I
credits. and that they fall within the "liberty
have reviewed, Sa"di" is being applied
interest" supported by the fourteenth amendment
retroactively by the courts. dismissing prisoner
[for slate prisoners. and the fIfth amendment for
lawsuits. The courts have admitted errors in
federal prisoners] of the U.S. Constitution. 11
procedW'eexisl under Wolff, but Sandin nmowly
defmes your rights, limiting Wolff extensively.
Your Uberty Interest To Not use Good
Just be prepared to have this case thrown at you,
Time
ifyou intend on litigating anything relative to due
process or disciplinary hearings.
The court of appeals for the ninth
The court held that ifyou don't have a
circuit bas ruled that Washington state prisoners
rule, statute, law or policy to back you up and
retain a slate created due process liberty interest
provide you something. and you didn't or a
in not losing their good time credits unless they
possible sanction was not the loss of good time.
are provided with due process at a disciplinary
Sandin says your screwed. The Supreme court
hearing. It also held that § 1983 provides the
appropriate means for prisoners to challenge the
held that the constitution does not specifically
loss of good time without due process. This is a
describe rights to prisoners in its language. The
significant ruling because it is one of the fJrSt to
potential or the loss of good time or the existence
ofa statute,law or policy providing you something
address the issues left open by Sa"din v.
Conller. 12
is your only protection from totally getting
Sandin'd.
In Washington state Norman Gotcher.
Your only safeguard to the Sandin v
a prisoner. was twice charged with having
committed serious infractions. He was found
Co"nel' decision is the many circuit cases that
guilty and lost 30 days of good time and was
have held that "IF the potential sanction involves
placed in segregation. Gotcher filed suit under
loss ofgood time, regardless of ifgood time is lost
42 U.S.C. § 1983 claiming that his federal right
or not. Wo(ffprotections are required" Loss of
to due process was violated when DOC
good·time cl'edits is a common sanction by prison
employees failed to give him 24 hour advance
stafffor a prisoner's rules violations.
notice of the charges against
In the Ramirez' case.
him and refused to allow
the question was raised as to
States themselves and policies have
him to call witnesses or
whether a new statutory plan
not only provided a statutory right
documentary
present
for awarding good-time credits
to good time but also specifies that
evidence in his defense. The
could be applied. without
it is to be forfeited only for serious
district court dismissed the
violating the ex post facto
misbehavior.
suit on the defendants'
clauses [After the fact, or by
WolffvMcDonnell.418 US '39(1974)
motion to dismiss for failW'e
an act or fast occurring after
to state a claim upon which
some previous act or fact, and
relating thereto.] of the state
and federal constitutions. to prisoners who
committed crimes before the date ofenactment of
the new plan. -The court found no violation since
10
Wo(ffv McDonnell. 418 US 539
the new plan affected only prisoners committing
(1974); See also. Crooks v Wame. 516 F2d
infractions nfier the date of its passage and did not
837 (2d Cir 1975); Powell v Ward. 392 F
affect the punishment for the prisoner's original
Supp 628 (SONY 1975). modified. 542 F2d
crime. In reaching this conclusion, the court
101 (2d Cir 1976)~ Martino v Carey, 563 F
applied the two-part test in Weaver. 9 The Weaver
Supp 984 (D Or 1983).
tests consisted of (I) for the law to violate the ex
II
Wo(ffv McDom,ell. 418 US 539,
post facto provision of the Constitution. (2) it had
571. n19 (1974); See also. Green v Secretary
ofPublic Safety, 68 Md App 147. 510 A2d
8
/" re Ramirez. 39 Cal 3d 931. 705 P2d
613 (1986). but also compare Green to Ward
897. 218 Cal Reptr 324 (1985). cert deIfied,
v Jolmson. 667 F2d 1126 (4th eir 1981).
476 US 1152 (1986).
IZ
Sandin v. Co"ner. 115
9
Weaver v Graham. 450 US 24 (1981).
S.Ct. 2293 (1995).

How to WIN Prison Disciplinary Hearings

6

reliefcould be granted, U holding that Washington
Constitution does not guarantee good time credit
state prisoners had no protectable liberty interest
tor satisfactory behavior while in prison. But
in remaining free from disciplinary action.
here the state itself has not only provided a
TIle appeals court began by rejecting the
statutory right to good time but also specifies
defendants' argument that Heck v. Humphrey, 14
that it is to be forfeited only for serious
bars prisoners' claims challenging the loss of
misbehavior. Nebraska may have the authority
good time because it will affect the duration of
to create, or not, a right to a shortened prison
their confinement. "Wood's reliance on Heck,
sentence through the accwnulation ofcredits for
however, is misplaced. Gotcher's good conduct
good behavior, and it is true that the Due
time credit is similar to the claim in WolfJ v.
Process Clause does not require a hearing in
McDonnell." In Heck, the Court ex-pressly
'every conceivable case of government
impairment of private interest.' But the state
distinguished Wolff, noting that WolfJchallengcd
the procedure by which the inmate was denied
having created the right to. good time and itself
recognizing that its deprivation is a sanction
good-time credits. Wolff, like this case, involved
authorized for major misconduct, the prisoner's
a claim for using the wrong procedure, not for
interest has real substance and is sufficiently
reaching the wrong result (i.e. the denial of good
embraced within the Fourteenth Amendment,
time credits)." Relying on Heck the court noted
F'ifth Amendnlent for Federeal Prisoners,
that the claim at issue in WoW did not call into
question the lawfulness of
'liberty' to entitle him
the prisoner's continuing
to those minimal
confmement. "Likewise,
The state cannot hide or remove that right
procedures appropriate
Gotcher's ease does not call
under
the
merely by issuing the disclaimer that it was
into question the lawfulness
circwnstances
and
not its intent to create a liberty interest.
of
his
continuing
GOlcher
v.
Wood,
66 F.3d 1097 (91h Cit. 1995)
required
by
the
Due
confmement and is not _ _ _ _ _ _ _ _ _ _ _ _ _ _ . Process Clause to
barred by Heck."
The
court
discussed Washington's good conduct time credit
where prisoners serving Sentence Reform Act
(SRA) sentences can get up to 10 days per thirty
days served reduced from their sentence (the
amount varies bosed on the type ofsentence being
served and when the offense was committed). In
this Washington State case, the relevant
provisions are at WAC 137-28-006 and were
developed in response to RCW § 72.09.130
"which provides that the DOC 'shall adopt' a
system providing incentives for good conduct."
(Check your state for statutes that apply to you.)
The appeals court decided thhe lower court erred
in applying the due process analysis of Hewill v.
Helms, which was abandoned in Sandi".
The court went on by saying, "For
purposes ofour due process analysis, the scheme
of the good conduct time credit system in
Washington appears to be indistinguishable from
Nebraska's good conduct time credit system,
which the Supreme Court in WolfJv. McDonnell
found to confer a liberty interest on inmates... As
the Court held in WolfJ: 'It is true thai the
13

Fed. R. Civ. P. Rule 12(b)(6)..

14

Heck v. Humphrey, 114 S.Ct.

2364 (1994).
IS

539 (1974)

Wolffv. McDon"el', 418 US

insure lba1 state created
right is not arbitrarily'
lost"
Washington State, among 49 other
states, have used a "back door method" to
attempt to remove any rights from prisoners in
various methods of attempting to word ''you
have nothing coming" which is not true. The
court criticized Washington DOC Policy
I 00.100 which states that the purpose of the
DOC in having policies is merely to guide DOC
personnel in the performance of their duties and
"It is not the intent to grant offenders under the
jurisdiction of the Department by policy a
state-created liberty interest in addition to those
rights guaranteed offenders under the United
States Constitution." Fortunately, the court saw
through the DOC's smoke screen this time and
held "This DOC policy directive, however, is
not controlling. As IVo{Uindicates, the focus is
whether the state has created a right of 'real
substance.' If it has done so, the state cannot
then bide or remove that right merely by issuing
the disclaimer that it was not its intent to create
a liberty interest. Moreover, the disclaimer in a
DOC policy statement does not override the
provisions of the Washington Administrative
Code. And as the WAC states with regard to
prison disciplinary procedures, its PW'pOSC is to
'provide a standardized system consistent with
constitutional due process for ascertaining

I - After Sandin and its Current Effect on Prisoners
whether (prisoner] misconduct has occurred.
WAC § 137-28-005(1)""
The court on Gotcher went on to say
"Thus, with regard to whether Gotcher [the
prisoner] possess a liberty interest in
accumulating good time credits, this case falls
squarely under Wolff, which the Supreme Court
noted in Sandin 'correctly eslablished and
applied' due process principles in the prisoner
liberty interest context... Because the district
COM'S ruling conflicts with Wolff, we reverse that
ruling:'
Turning to whether Washington slate
prisoners have a liberty interest in remaining free
from disciplinary segregation, which the court in
Sandin held they do not unless the segregation
imposes an "atypical and significant hardship," the
court held the record in this case was insufficient
to make that detennination. Because this was a
Fed. R. Civ. P. Rule 12{b)(6) dismissal the court
slated it would not affum unless it was clear that
Gotcher could prove no set of facts entitling him
to relief. This claim was also reversed and
remanded to the lower court for further
proceedings. "16
This case will be ofextreme importance
to Washington and other Slate prisoners. TIle
Washington DOC recently introduced new
disciplinary WAC rules in which all serious
infractions allow for the loss of good time if a
prisoner is found "guilty:' A question that is still
open after Sandin is whether Wo(ffdue process
protections apply based on the potential sanction
that may be imposed, i. e. the loss of good time, or
ifa COM will only look at the malter after the fact
as to what sanction was actually imposed to
determine what process was due. Several courts
have held that due process rights must be
determined with regard to the potential sanction
rather than retroactively based on the actual
sanction imposed in a particular case. 1l
Gotcher appears to directly overrule
Dewyer v. Davis," which held that Washington
State prisoners seeking to challenge the loss of
their good time in prison disciplinary hearings
must first exhaust their slate remedies and proceed
in federal court via habeas corpus, and could not

16

Gotcherv. Wood, 66 F.3d

1097 (9th Cir. 1995).
17
A/exanderv. Ware, 714 F.2d
416, 419 (5th Cir. 1983), and McKinnon v.
Pallenon, 568 F.2d 930, 939 (2nd Cir. 1977).
18

Dewyer v. Davis, 842 F.

Supp. 1304 (WO WA 1993).

7

use § 1983 to challenge prison disciplinary
hearings.

7th Circuit Discusses Sandin
In the Supreme Courts ripping apport
prisoners' right to due process in prison
disciplinary hearings. Sandin opened up more
questions than it was supposed to answer and
the lower courts are grappling willt this ruling,
and will for some time and they ultimately
determine bow far prisoners' due process rights
are rolled back. This is the first published circuit
ruling to interpret Sandin and in it the seventh
circuit doesn't do much to resolve the
uncertainty created by Sandin.
Larry Whitford, an Illinois slate
prisoner, ftled suit after a prison disciplinary
committee convicted of him of assault and
sentenced him to six months in segregation. six
months loss of good time credits and 8 transfer
to a maximum security prison. Whitford claims
he only witnessed a fight between two other
prisoners and was in no way involved in it. Both
prisoners provided affidavits supporting
Whitford's claim. Whitford sued the members of
the discipliruuy committee, investigating officers
and their supervisors claiming his due process
rights were violated because they did not
conduct an impartial investigation, consider the
exculpatory affidavits, provide him with an
impartial disciplinary committee or provide an
adequate explanation of the basis for his
conviction. The district court granted summary
judgment to the defendants and dismissed the
suit on all counts. The appeals court affinned in
part and reversed regarding the claims involving
the evidence summary on lite infraction report
and the use ofinformant testimony.
In his appeal Whitford contended that
the district court had erred when it considered
two successive motions for summary judgment
by the defendants. The appeals court held that
denial of summary judgment has no res judicala
[n matlerjudicially acted upon or decided] effect
because its denial is not a fmal judgment, it is an
interlocutory order. The court noted several
circumstances where a renewed or successive
summary judgment motion is appropriate and
held that district courts have discretion as to
whether they will consider the motion or nolo In
this case, the district court did not abuse that
discretion in considering the defendants'
successive summary judgment motions.
20 Illinois administrative code §
504.60(e) requires lItat prison investigators
submit exculpatory evidence to disciplinary
committees. Whitford claimed that be gave the

8

How to WIN Prison DisciplinllJ)' Hearings

federally enforceable liberty interest in not being
sentenced to disciplinary segregation without at
Icast minimal due process. The court held that
Sandi" called this ruling into question as well.
The court held the record required factual
development as to what Whitford's actual
conditions of confinement were in segregation
and if these imposed an "atypical and
significant" hardship on him. This issue was
remanded back to the district court for further
findings offacl
Turning to the merits ofthe claims, the
court held that the lower court had properly
granted swnmmy judgment on Whitford's
claims that he was not given prior notice of the
charges against him nor did he have an impartial
disciplinary committee.
The court held that Whitford should
swvive summary judgment on his claim that the
disciplinary committee erred in not considering
the exculpatory evidence, in its use ofinformant
testimony and in its summary of the evidence
used to convict him. The disciplinary
committee's decision was based on the
investigation report. "However, the investigation
report... does not in anyway indicate that
Whitford committed the offense." The only
evidence linking Whitford to the offense was
contidential informant statements, the details of
which were not provided in the sW1lD1ary. The
court noted that
Because Sandin
while the summary
held
that
stated that the
In Sandin, the Supreme Courts holding that prison
punishing
informant's
regulations
are nothing more than "empty promises." If
prisoners
by
testimony supported
that were not bad enough, "such regulations are not
placing
them
the
investigation
designed to confer rights on inmates." The regulations
into disciplinary
report which in tum
are instead "primarily designed to guide correctional
segregation will
supported
the
officials in the administration of a prison." Authors Note:
not
always
conviction,
"if
Docs thalmcan, prison regulations don 'I apply to prisoners?
trigger
due
anything, the text of
Sandin vConner, 115 S. Ct 2293.l1t 2299 (1995)
process
the
only
protections, the
Ulvestigation report
question before
before us appears to
it was whether Whitford's six months in
clear Whitford ofany involvement in the fighl."
segregation required due process or nolo In Rowe
Discussing the standards for use of
v. DeBruyll, 17 F.3d 1047 (7th Cir. 1994) the
informant testimony in disciplinary hearings, the
court held that federal due process was required
court noted that while prison disciplinary
before a one year segregation sentence was
committees may use anonymous informant
testimony, .....a prison disciplinary board must
imposed, because it was outside the normal scope
of a prisoner's sentence. However, that ruling is
accompany the use ofa confidential informant's
now uncertain, "...even if prisoners are entitled to
testimony with an indication that the informant
due process protections before extreme terms of
is reliable" Ul order to assure the prisoner's right
segregation may be imposed, Whitford's sentence
to due process. To establish an informant's
ofsix months was not such an extreme term."
reliability one offour methods must be used by
the committee: (I) the oath ofthe investigating
In Gi/bel1 v. Fraziel; 931 F.2d 1581 (7th
Cir. 1991) the court held that 1II.Admin.Code §
officer as to the truth of his report containing
504.10 to 504.150 granted Illinois prisoners a
confidential information and his appearance
exculpatory affidavits to an investigator who did
not forward them to the hearing committee.
Sandin abandoned the whole "state created due
process liberty interest" test enunciated in Hewill
v. He/ms, 459 US 460,103 S.Cl864 (1984) and
held that the stale does not create a liberty interest
enforceable in federal court unless it imposes an
"atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life."
The court applied Sandin to hold that the
investigator's failure to submit the affidavits did
not impose a "significant hardship" on Whitford
and that 20 Ill. Admin. Code. ch. I sec.
504.60(e) did not rise to the level of creating a
liberty interest. The court noted that Whitford still
retained a right to submit the affidavits to the
disciplinary committee himseU: which he did, so
he could not claim that the investigator's failure to
follow § 504.6O(e) prevented him from presenting
his defense. Moreover, prisoners have no federal
due process right to a prehearing investigation.
The court noted that "Sandin recognizes the
possibility that a prisoner may possess a liberty
interest in freedom from punishment that 'will
inevitably affect the duration of his sentence....
While the loss of good time credits would affect
Whitford's sentence, he later earned them back,
rendering that issue mool Whitford had no due
process right not to be transferred to a different
pIlson, so that claim was properly dismissed.

I - After Sa"di" and its CWTent Effect on Prisoners
before the disciplinary committee; (2)
cOlToborating testimony; (3) a stalement on the
record from the hearing officer that he had
fusthand knowledge ofthe sources of infonnation
and considered them reliable on the basis oftheir
past record of reliability; or (4) an in camera
reviewofmnterial documenting the investigator's
assessment of the infonnant's credibility. See:
Me"doza v. Miller, 779 F.2d 1287 (7th Cir.
1985). The committee did none of these and did
not claim to have done so in court, which
constituted "an admission that they did not comply
with the requirements set forth in Me"doza."
Likewise, the court held Whitford had
stated a meritorious claim that the committee did
not consider the other prisoners' exculpatory
affidavits. The affidavits are not referred to in the
smnmary which convicted Whitford ofthe assault.
"The adjustment committee may not arbitrarily
refuse to consider exculpatory evidence simply
because other evidence in the record suggests
guill The committee is required to issue a writtcn
explanation of its decision in order that 'a
reviewing court (or agency) can determine
whether the fmding of guilt was sufficiently
arbitrary so as to be a denial ofthe inmate's due
process rights." Chavis v. Rowe, 643 F.2d 1281,
1287 (7th Cir. 1981).
The court held that this case was similar
to Chavis because the committee's summary gave
no reason why it found the infonnant's testimony
more credible than Whitford's testimony and the
exculpatory affidavits. While the committee in
Chavis at least acknowledged the exculpatory
evidence the one in this case did not even mention
it. "Whitford presented exculpatory evidence to
the committee, and under Vie"s and Chavis he is
entitled to an explanation of why the committee
disregarded the exculpatory evidence and refused
to fmd it persuasive."
These portions of the case were
remanded to the lower court with instructions that
before trial the court must initially determine
whetber"in light of Sa"di", Whitford possessed a
liberty interest in freedom from disciplinary
segregation." See: Whilford v. Bogli"o, 63 F.3d
527 (7th Cir. 1995).

9

How to WIN Prison Disciplinary Hearings

10

2 - DISCIPLINARY RIGHTS OF PRISONERS

Prison Rules & Procedures
The pOlenlial punishmenl thal may bc
issued is whal triggers the prolections in IJ'o/ff.,g
Prison rules must exist in order for cven a prisoner
to have a reasonable chance ofsurvival in such an
oppressive and demoralizing environment
Unique problems exisl in prisons thal the courts
like to remain distant from 1O• Courts have also
decided thal prison disciplinwy hearings are not
civil or criminal proceedings so that a person
could not slate a claim for malicious prosecution21 •
Prisoner's cannot be punished for
conduct unless they W'c given advance "fair
notice" thal action thcy would be charged with is
prohibited. 22 The prohibition musl be clear and
not too vague. Prisoners should nOl be made to
abided by rules that they have nol been informed
of. Courts have held thal a prisons failure lo
provide incoming prisoners copies of rules and
regulalions, and read the rules to illilerate
prisoners. violates the due process requirement. 2J
Upon admiUllncc to a prison. the officials
are required lo provide you with a wriuen copy of
the rules and any sanctions imposed if the rules
/9

arc broken. For persons who are unable to read
or speak another language, prison staff is
required to explain the rules and provide the
appropriate rules in the appropriate languages.
24 When infracled. staffare required to provide
you with the specific charge, date, time, and
place of the alleged misbehavior along with the
supporting evidence. You are also entitled to a
writlen explanation of the procedures to be
followed and your rights during the bearing.
Often courts do not insert their
involvement in specific prison rules and
operations. Since the 1970's, courts have started
addressing prisoner complaints on a limited
basis. Cwn:ntly, courts will address your claim,
but admittedly, you have a tough struggle to
have a chance ofwinning. Punishments allowed
~e also in a questionable area. Often prisons
lBJl?re the allowable punishment rules and apply
therr own treatment in violation of obvious
written limitations.
The only punishments allowed for
federal prisoners 28 CFR § 541.13, also in
Appendix A. Many slates have their own
M~nimum Standards for full service jails and
pnsons, codified in administrative law.

Alexanderv. Ware, 7/4 F.2d 4/6 (5111
Cir. /983); Gaslon v Taylor. 9/8 F.2d 25 (4111

Conmct in Prison Rules

Or. /990).

Grayned v City ofRockford, 408
/04. J08 (/972) "Inmales should nol .. . be

Rules regulating prisoner conduct are
sometimes vague, unwritten and often
dispulable. ill QuicJ..n,lhe courts found that "lhe
disciplinmy committee lacked authority to
impose restitution on an prisoner where, by state
law, restitution required a rmding of civil or
criminal responsibility." Prisoners cannot be
infrncled for violating prison rules if those rules

p,mislledfor cOllducl unless given fair advallce
IIolice... ..

24

20
Anderson v Fiedler. 798 F Supp 544
(ED Wis /992).
21

Quic!svJolles, 754F2d /52/ (9111Cir

/985).
22

u.s.

2J
Hamilloll v Love, 358 F Supp 338 (ED
Ark /973); Gibbs v Killg. 779 F2d /040 (5111
Cir /985), ce,1 denied. 476 US / / /7 (/986);
Sands v IJ'ainwrigllJ. 357 F Supp /062 (MD
Fla), vacaled 49/ F2d 4/7 (5111 Or /973);
(llolice may be fulfilled by pOSlillg roles in
cOllvelliellJ localiolls.)

Americall BarAssocialioll,
Sialldard, 23-3.1; Ramirez v /11 ret 566 393d
931, 705 P2d 897, 218 Cal Reptr 324 (1985),
cerl dellied 476 U.S. 1152; 106 S.Ct 2266, 90
LEd 2d 711 (1986); CO/li,1S v Vilek, 375 F
Supp 856 (DNH 1974).
2S
QuickvJolles, 754 F2d 1521 (9th
Cir 1985).

2 - DISCIPLINARY RIGHTS OF PRISONERS
are so vague they can't reasonably be understood
to bar that conduct. Basically, this should be
argued whenever a written rule you were notified
of doesn't prohibit that exact conduct. Your
defense at hearings is to say "I don't understand
the infraction and it isn't written clearly and ask
the hearing officer to explain what it means to
you.''16
Courts have also decided that if a rule is
enforced or even distributed and violates the
basics of"reasonableness", its content does not
matter, it will be considered in violation of
prisoners' basic rights. For example, some rules
have existed where it was considered a violation
of prison policy to: "talk to another convict,"
"vicious eyeballing," or "use any ill language to an
officer" or "sit on a certain bench. "17 Many prison
rule books can be thrown out the window. In
doing this, you must look at the rule. Is the rule
specific, vague. too broad or in violation of some
other established actual law? If so, the rule could
be considered "unenforceable." In Procu"ier v
Alartillez'U the court said that "prison rules must
NOT offend the normal standards prohibiting
vagueness and be too broad."
Evaluating the rule, you must look at
several issues; (I) Is the rule specific. (2) Is the
rule too vague, (3) Is the rule too broad or (4) Is
the rule in violation ofsome other established law.
If so. the rule would be declared "unconstitutional
under the "vagueness theory."29 In Procullier v
AlarUIIC!z1°, the court held that "rules must nol
offend normal

standards prohibiting vagueness and be too
broad." The "reasonablenesS" test has now
been ovenuled by the "4 prong reasonableness"
lest in Tumer. JI
In T,mler», the Supreme Court
confmned the appropriateness of a rationally
related test for validity of the institutional rules
in the context of a regulation prohibiting
prisoner marriages. The court indicated that
there are four factors which MUST be
considered in determining the validity of any
regulation:
I.
There must be a valid rational
connection between the prison
regulation and the legitimate
.governmental interest put forward to
justifY it (it cannot be arbitnuy or
irrational and the governmental
objective must be legitimate and
neutral - it cannot be concerned with
the content of expression in First
Amendment issues).
2.
There must be an alternative
means of exercising the right (where
the rule limits a constitutionally
protected right ofthe prisoner).
3.
There must not be a
significant "ripple effect" on fellow
prisoners or staff (if the prisoner is
permitted to exercise his protected
right).
4.
Finally. the absence of a
ready alternative to the regulation is
evidence of its reasonableness. The
existence ofobvious, easy alternatives
may be evidence that the regulation is
not reasonable. but instead is an
"exaggerated response" to prison
concerns. It is not a "least restrictive
alternative tesL" [SJut if a prisoner
claimant can point to an allernative
that fully accommodates the prisoner's
rights at de lIIinilllUS [some asshole
judges tenn for "at minimal"] cost to
valid penological interests, a court may
consider that as evidence that the

26

Wolfe/ v Morris, 972 F.2d 712 (6th
Cir. 1992); Adams v BUllnell, 729 F.2d 362 (5th
Cir. 1984); Coffillall v Trickey, 884 F.2d 1057
(8th Cir. 1989); Aleis v GUllIer, 906 F.2d 364
(8th Cir. 1990); Rios v Lane, 812 F.2d 1032
(7th Cir. 1987).
27

Singer. Prisollers ' Rights Litigatioll: A
Look at tile Pilst Decade a"d at the Comillg
Decade, 44 Fed Probation 3, 5-6 (Dec. 1980);
and Americall Bar Associatioll, Joillt
Committee Oil Lega/ Status ofPrisollers,
CommelllalY to Proposed Standard 3.1,
reprillled 01 14 Am Crim L Rev 444 (1977).
Procunier v Mal1illez. 416 U.S. 396,
94 S Ct. 1800,40 L Ed 2d 224 (1974).

28

Wolfe/ v Mon'is, 972 F2d 712 (6th Cir
(992) "rules that are over broad could be
considered unenforceable."
29

30

Procullier v Martinez, 416 U.S. 396.
94 S.Ct 1800,40 L Ed 2d 224 (1974).

11

31

TUnlervSafley, 482 U.S. 78,107
S.Ct 2254. 96 L.Ed 2d 64 (1987).

TUl7lervSafley, 482 U.S. 78.107
S.Ct 2254. 96 L.Ed 2d 64 (1987).

32

How to WIN Prison Disciplinary Hearings

12

regulation does satisfy the reasonable
relation standard."
At least two Appeals courts have held
that the courts, in reviewing the validity of
regulations, eannot rely on conciusoI)' allegations
by the state ofa mtional relationship between the
rule and the accomplislunent of legitimate
penological interests. Rather, these courts require
the slate to identify the specific penological
interest in question and demonstrate that specific
interests advanced are the actual basis for the
policies in question. Further, the state must
demonstrate that the policies are reasonably
related to the furtherance of the interests

Smith, the prisoner's claim was that he never
received the rules while at another
prison did not hold weight with the courts
because the guards showed as evidence that
Smith J7 had signed a paper showing he had
received a copy.
You also have the right to know. in
advance what sanctions or punishments you may
be subjected to for violation of prison rules".
See Appendix A Rules and Discipline for the
BOP. Slate disciplin8I)' rules V8I)' from slate to
state. Look up your slate rules, and become
familiar with them.

identified JJ

In Prisons. staffwill sometimes infract a
person for "having "anything not specifically
issued or authorized by prison officials." This is
often times "abuse of power and discretion by
prison stafr'. Often, when a prisoner attempts to
gather signatures on a petition showing support
for some issue, prison staff will infract him. 10
Edwards v WhiteU,lhis is not allowed because the
prisoners' actions are protected by the First
Amendment and therefore the prison rule is
invalid.
But, I expect you to claim your
Constitutional Right that you cannot be infracted".
If staff fail to provide an incoming
prisoner with an understandable copy of the rules,
he cannot be infracted for violating the rules
because this violates their due pr0cessJ6 rights. 10
33

Caldwell v Miller, 790 F2d 589 (7th
Cir 1986); Walker v Sumller, 917 F2d 382 (9th
Cir 1990)(requircd blood test was not shown to
be related to any legitimate penological interest)
Edwards v White, 501 F Supp 8 (MD
Pa 1979), affd, 633 F2d 209 (3rd Cir 1980).

34

Hrmyadi v Smith, 112 Mise 2d484,
447 NYS 2d 226 (S. Ct 1982) where a
grievance committee could not infract this
person for lying because the complaint to the
grievance committee was protected under the
First Amendment

35

36

Keeves v Petteox. 19 F 3d 1060 (5th
Cir 1994); Hamiltoll v Love, 358 F Supp 338
(ED Ark 1973) where an alleged litter problem
was claimed the reason for not giving out copies
of the rules by staffwas found "no excuse" by
the courts."; Gibbs V Killg, 779 F2d 1040 (5th
Cir 1985), eert dellied, 476 US 1117 (1986);
Sallds v Waimvright, 357 F Supp 1062 (MD
Fla), vacated 491 F2d 417 (5th Cir 1973).

37

Smith v Coughlill. 583 NYS 2D 622
(App Div 1992).

38
Col/illS v Vitek. 375 F. Supp 856
(DNH 1974); Talley v Stephens, 247 F Supp
683 (ED Ark 1965); Federal Prisoners - 28
CFR § 541.11, and Dept ofJustice, Fedeml
Standards for Prisoners and Jails. 8.08, 10.0I,
10.02 (1980), and for some Slate Prisoners,
N. Y. Corrections Law §138(3) (McKinney's
1987).

Chapter 3 - DUE PROCESS

13

3 - DUE PROCESS

Before analyzing Wo!f{. you should fIrSt
infracted and was placed in segregation. The
understand Post (After) Sa"di" as discussed in
courts determined that since AU prisoners are
detail in Chapter 1. Since Wolff. this was the
given this test, he was not entitled to a hearing
foundation for minimally accepted procedural
and waived his due process Rights by refusing
requirements for a disciplinary hearing, until
the test
Salldi". Spring of 1996, the Supreme Court has
yet agreed to accept another that happens to be a
When Due Process Is Required
Washington State prison discipliruuy case under
The potential punishment that may be
similarciroumstances as Sa"di". The 7th Edition
issued is what triggers the protections in Wolff.
will have that analysis. Until then, you should
'1 If you have something to lose. that you
read Prison Legal News, a monthly newsletter, or
currently have in a prison environment, Due
the Federal Reporter available in most law
Process is required
libraries or other case
to take it away or
advance
shects
to
limit your access to
understand how this may
In
the
light
of
Sa"dill,
"-IF
a
potelltial
it
If Due Process
apply to you. Until then,
sanction
involves
the
possibility
for
loss
of
not apply to a
does
stand strong and unite.
good time. regardless ifgood time is lost or
disciplinary malter.
nol, Wofffprotections are required."
than prison staff
AlexDnder v. Ware. 714 F.2d 416 (Slh Cir. t983);
have a wide range of
Minimum Due Process
Galton v Taylor. 918 F.2d 2S (4lh Cir. 1990)
possibilities
Requirements
available to use in
resolving
the
You have the right
problem. Wolff is the general classic case
to refuse to attend a disciplinary hearing and
waive Due Process. The right to this hearing fIrSt
representing the requirements prison staffmust
must be waived by you and : (I) must be valid (2)
use for disciplinary hearings. However. many
the waiver should be knowing, (3) the waiver
other cases exist that also clearly defme Due
must be intelligent, and (4) the waiver must be
Process within a prison setting.
voluntmY'. If you refuse to cooperate with a
hearing, courts have generally found you have
When Wolf/is Required
refused your Due Process Rights, and have waived
them.
Wofff v McDoII"ell, 418 U.S. 539
A case that may have been argued
(1974) was decided by the Supreme Court
becoming a landmark case of examples for
incorrectly by the prisoner is DUll" v White40• The
prisoners to prison disciplinary hearings. It
court decided that DUll" was not entitled to due
involved the loss of good time credits. The
process when he refused an AIDS (acquired
immune deficiency syndrome) test and was
court decided that in Wo!f{. loss of good time
credits created a «liberty interest" because the
39

State ex rei Hoover v Gaglloll, 124
Wis 2d 135, 368 NW2d 6576 (1985).
40
DIIII1I v White, 880 F2d 1188 (lOth Cir
1989), cel1 de"ied, 493 U.S. 1059 (1990).

41

Alexa"derv. Ware, 714 F.2d 416
(5th Cir. 1983)~ Gasloll v Taylor, 918 F.2d 25
(4th Cir. 1990).

14

How to WIN Prison Disciplinary Hearings

law provided for good time and \Vas supported by
the Fourteenth Amendmenl4l • The Wo(ffdccision
required that Due Process \VllS required before any
loss ofgood time credits could be taken away. The
Supreme Court in a footnote on page 571 nl9 of
Wolff, also stated that other sanctions also applied
such as solitary confinement and existing
privileges. In Greell v Secrelary of Public
Safety 43, still ore argwnent exist as to what
"privileges" exist requiring Due Process. This is
the point that the majority of the courts seem to
draw a distinction. They state that they did not
intend to suggest that the procedures mandated by
the decision would also be required for the
imposition ofmuch lesser penalties, such as loss
of existing privileges. The court did not define
what was a "privilege" and did not suggest what,
if any, procedures were constitutionally required
when such lesser penalties are imposed.
Aside from the most common "loss of
good time credits" penalties applied to prisoners,
they also may be placed in segregation (solitary
confmement) and withheld or denied existing
privileges. Loss of good-time credits is a legally
established means to increase a prisoners'
sentence. The definition ofa "privilege" and your
right to it must be considered in each individual
case.
For a rare case to argue the other side, it
might use Orl v While 44 where an prisoner was
denied drinking water on a work detail for
refusing to work. In cases of only minor
sanctions, you should research decisions from
your specific district to sec how the judges are
deciding. In Caslaneda v Helllllall 4S the courts

decided a very minor sanction required lesser
stringent due process requirements.
Understanding Uberty Interest

"Grievous Loss" or more accurately
called "Liberty Interest", in which the grievous
loss is obsolete because of current legal trends
and analysis. Applying the analysis in Olim,46 it
is easy to apply the rational and analysis to the
application of prison disciplinary rules for your
particular state and situation.
Several
foundation cases defme the "liberty interest"
issue in detail. 47 If you wish to protect your
lights wtder your set ofcircwnstances, consider
the parts of a "Liberty Interest·.... One court
decided that denial of privileges and solitary
Confinement, or the reduction of exercise,
association with others, or limitations on nonnal
work or educational activities qualified for due
process IF that status was intended to continue
for a period oftime, usually more than 8 hours49•
Other courts have held that recreation periods
are important to physical and mental health. If
recreation is summarily cancelled for no reason,
or for rule infraction, or even with an infraction
and done for punishment, it should be severely
limited. 50

(...continued)
(1991).
46
Olilll v lI'akillekolla. 461 US 238.
103 S Ct 1741 (1983).

Bal:field v Briet1oll. 843 F2d 923
(II th Cir 1989); Dudly v Slewart, 724 F2d
1493 (11th Cir 1984);Sproylle v Wallers. 753
F2d 498 (6th Cir 1985); Clark v Brewer, 776
F2d 226 (7th Cir 1985); Wlrilelronr v
Han-e/soll. 758 F2d 1416 (11th Cir 1985);
Parker v Cook. 642 F2d 865 (5th Cir 1981);
and see Vall Poyck v Dugger, 779 F. Supp
571 (M.D. Fla 1991), affd. 977 F2d 598
(11th Cir 1992).
.f7

42

Fifih Amendment for Federal
Prisoners. State Prisoners would use the
Fourteenth Amendment
43

Green v Secrelaty ofPublic Safety
68 Md App 147.510 A2d 613 (1986) it says
Wo(ff does not apply if the punislunent in
solitary confmement is less than g-hours. But in
Ward v Johllson, 667 F2d 1126 (4th Cir 1981)
it applied Wo(ffwhere a prisoner had lost only
recreational opportunities, the court said that the
pOlenlial for punisluncnt rather than the actual
punislunent determines whether due process
should be applied. Shepardize this case for the
most current material and direction of the courts.
44

0,1 v While, 813 F2d 318 (11th Cir

1987).
4S

Caslalleda v Hell/llall,. 914 F2d 981
(7th Cir 1990), cert dellied, 498 U.S. 1124

(continued...)

LaBall v Twomey, 513 F2d 641 (7th
Cir I975);Dagle v Helgelllore. 399 F Supp
416 (DNH 1975) ; Berclr vSlahl, 373 F Supp
412 (WDNC 1974); Avalll v Clifford. 67 NJ
496.341 A2d 629 (1975).
48

LaBall v Twollley, 513 F2d 641 (7th
Cir 1975).
so
Toussaillt v McCarthy. 597 F Supp
1388 (N.D. Cal 1984), affd ill part rev 'd ill
parI, 80 I F2d 1080 (9th Cir 1986), cert
49

(continued...)

Chapter 3 - DUE PROCESS

15

In the state laws, statutes, federal code
a "Liberty Interest."" For example, you cannot
of regulalions and other rules have been created
claim a "loss" uyou never had it to begin with.
for procedural processes. By reading your local
This rule applies to most elements of 0 "loss"
interest. But once you've had "good time,"
rules, regulations and statutes, these already in
place for the groundwork for your argument, and
"parole," "recreation," or "not in segregation
status." These are all just examples of 0 "loss"
the rules of decision making prison staff arc
required to follow. If prison staff violate those
subjecllo liberty interest ifyou were to lose one.
Many courts
rules, they violate law.
have allempted to defme
For example. in Florida
what a "Liberty Interest
state.
Florida
In Sandill, the Supreme Courts holding that
really is and where it
Administrative Codc
prison regulations arc nothing more than
exists."
Maybe
33-22
deals
with
"empty
promises." If that were not bad
Clute/relle v Procullier is
disciplinary hearings.
enough, "such regulations are not designed
The words to look for
a good case to consider
to confer rights on inmates." The regulations
are: "shall," "must," etc.
along with the Baxler
are inslead "primarily designed to guide
case" to help your
The use of these words
correctional officials in the administration of
defense positioning. In
in state rules provide
a prison." Authors Note: Does that mean, prison
analyzing
"Liberty
and create liberty
regulations don'l apply to prisoners?
Interest". your opponents
interest protected by the
Sandin v Conner, It S S. Ct. 2293, at 2299 (199S)
are going to attempt the
Fourteenth Amendment,
Meachum S6
theory.
independent ofany other
Meachum
and - the
constitutional violations.
Courlshave held that if prison officials
MOllla"ye'7 cases are similar. Massachusells
merely rename or relabel punislunent, due process
State prison officials wanted to transfer
is still required and their allempt to sidestep due
Meachum because he was suspected ofstarting
process is in violation." A periodic review of
several serious fires in the prison. Meachum
persons kept on "privilege denial" status must be
argued that because of the reason ofthe transfer
reviewed by prison slaffon a regular basis or this
he should be allowed a hearing and due process
denies the prisoner his due process rights. S2
as those in disciplinlU}'
Just a change in custodial status or the
hearings. The First Circuit court of Appeals
loss of"wol'k time·.,) can meet the requirements of
agreed with Meachum".
However, the State appealed and the
Supreme Court did not agree. The Supreme
court basically said that prisoners were not
necessarily expected to receive due process
when "any grievous loss upon a person by the
(...continued)
State" or "... any change in the condition of
denied. 481 U.S. 1069, 107 S.Ct 2462,95 LEd
confinement having substantial adverse impact
2d 871 (1987), subsequelll orderfollowi"g
on the prisoner involved is sufficient 10 invoke
remalld, 711 F Supp 536, aff'd iu pari, rev'd ill
pal1, 926 F2d 800 (9th Cir 1990). cel1 dellied,
54
Daigle V Helgemoe, 399 F Supp 416
112S.CI213.1I6LEd2d 171 (1991).
(DNH 1975).
51
Shelly \I Dugger. 833 F2d 1420. 1427
55
Clulchelle v Procullier. 510 F2d 613
n.8 (II th Cir 1987); Parker \I Cook, 642 F2d
(9th Cir (975), ,.ev'dsub 110m: Baxler v
865. 875 (5th Cir 1981); Taylo,' \I Clelllelll, 433
Palmigiallo. 425 U.S. 308 (1976).
F Supp 585, 687-88 (S.D.N.Y. (977); Walkerv
56
Meachum v Fallo. 427 U.S. 215,
)ol",soll. 544 F Supp 345, 347 (E.D. Mich
(J 976) Meachum was transferred to another
(982), Vall Poyckv Dugger, 582 So2d 108 (Flo
prison without a hearing. The court decided
Isl DCA (991); 779 F Supp 571 (MD Fla
that since Meachum was a state prisoner in
199 J), nff'd, 977 F2d 598 (II th Cir 1992).
Massachusetts, Wolff did not apply.
52
Tyler \I Black, 811 F2d 424 (8th Cir
57
Meachum v Fallo, 427 U.S. 215,
I987); MillS v Sharp, 744 F2d 946 (3rd Cir
(1976) and Molllallye v Haymes, 427 U.S.
1984); Kelly v Brewer, 525 F2d 394 (8th Cir
236 (1976).
1985).
53

Avalli v Clifford, 67 NJ 496, 341 A2d
629 (1975).

58
Meachum \I Fallo, 520 F2d 374 (1st
Cir 1975).

16

How to WIN Prison Disciplinary Hearings

protection !han !he disciplinary hearings do
Wlder Wolff. It says:
"An inmate ... receive some notice of
the charges agninst him and an
opportunity to present his views to the
prison official charged with deciding
whether to transfer him to
administrative segregation. Ordinarily
a written statement by the inmate will
Elements or a Liberty Interest
accomplish this purpose, al!hough
prison
administrators
State or Federal Law,
may fmd it more useful to
along wi!h policy statements as
permit oral presentations
long as the policy statements are
Delay A Prisoners StatU8tol)' Time
in cases where they
in themselves do not violate other
Limit For Hearing And,They Can
believe
a
written
protected rights could create a
Sue, And WIN.....
statement
would
be
liberty interesl Liberty interests
Solo v. Wa/ker.44 F.3d 169 (2nd Cir. (995)
ore legally defined, but also could
ineffective. So long as
be created by rules or even
this occurs, and the
explicit Wlderstandings'l. The
decision maker reviews
the charges and then-available
Hewitt v Helms 6J case is important regarding
administrative segregation where it defmes
evidence against the prisoner, the due
traditional liberty interests and how !hey are
process clause is satisfied." A footnote
also says that "a hearing must be given
created. Hewitt goes into !he analysis of
within reasonable time.
administrative and disciplinary segregation. In
this case, administrative segregation gets less
Potential punislunent that may be
imposed against you. ra!her than the actual
punishment given requires the due process of
S9
Wol.fr.
Due process was required in
Meachum v Fallo. 427 U.S. 215,224
Massachusetts
by the court of Appeals and
(1976)(emphasis original).
required a liberty interest governing a transfer to
60
Bruce v Wade, 537 F2d 850, 854 n9
segregation Wlder Hewitt 6.1.
(5th Cir 1976); Blake v Commissioller of
Often times, written and established
COlTeCtiollS, 390 Mass 537,457 NE2d 281
procedures for disciplinary actions, transfers,
(1983).
etc., provide procedures for a claim ofdenial of
61
due p~. The Dowdy case is often used by
Bill v Helldersoll. 631 F2d 1287 (6!h
defense attorneys to claim ··they do not have to
Cir 1980): Transfer to segregation requires due
follow !heir own rules." You should rely on
process; Tracy v Salamack, 572 F2d 393. 395
n9 (2d Cir 1978) and Devalley v Hall, 509 F
64
Supp 497 (D Mass 1981). These cases basically
DraytOil v RobillSOll, 719 F2d 1214
say that lower courts often refuse to follow
(3rd Cir 1983): administrative memo created
Meachum, finding !hot state-created liberty
liberty interest in remaining in general
interest exists in !he most seemingly
population; LaytOil v Beyer, 953 F2d 839 (3rd
insignificant places and circumstances.; Black v
Cir 1992), Depl of Corrections regulations
Parker, 4 F 3d-442 (6!h Cir 1992); Howard v
created a liberty interest by providing a
Grillage, 6 F 3d 410 (6!h Cir 1993).
reasonable expectation that prison inmates
would
not be placed in restrictive confmement
62
Walker v Hug/IS. 558 F2d 1247, 1255
unless
one
of!he three specific criteria was
(6!h Cir 1977); Mitchell v Hicks, 614 F2d 1016
mel.
(5th Cir 1980); Bills v Helldersoll, 446 S Supp
6S
967 (ED Teno 1978) a./fd ill part rev'd ill part,
Parellti v POlite, 727 F2d 21 (1st Cir
63] F2d 1287 (6!h Cir ]980); Kelllucky Dept.
1984).
ojCon'ecti01rs v Thompsoll, 490 U.S. 454, 109
66
Dowdy V)0/IIIS0Il, 5 I0 F Supp. 836
S.Ct 1904, 104 LEd 2d 506(1989).
(ED Va 1981). None of!he required elements
6J
Hewitt v Helms, 459 U.S. 460 (and at
!hat existed in U.s. v Cacereys 440 U.S. 74]
476) (1983); and Maldollado Salltiago v
(1979), as !hey did in Dowdy,' Black v Parker,
Velazquez Garcia, 821' F2d 822 (1st Cir
4 F 3d 442 (6!h Cir 1992); Howard v
1987).
Grillage, 6 F 3d 410 (6!h Cir 1993).
the protections of !he due process clause. "S9 To
get DrOWldMeac/lllm, you need to address several
issues: (1) was there any disciplinary actions
involved?'" (2) Are you going
10 be reclassified. sanctioned or treated differently
&han you cwrently are enjoying61 (ifyou could call
it that).

II

Chapter 3 - DUE PROCESS

U"iled Slates v Cacereys67 when against this type
of violation of policy using the following
guidelines when presenting a question to be
brought only in federal court when:
I.
The Constitution or Federal
Law requires or provides you
protections oflaw for such~
2.
An individual has reasonably
relied on agency regulations created for
his guidance or benefit and has suffered
substantially because of their violation
by the agency; andlor
3.
The violation must arguably
amoWlts to a denial ofequal protection.
Without a "state created liberty interest,
prisoners have no justifiable expectation that they
will be incarcerated in a particular state"or the
liberty interest test will be enough to reasonably
claim without "some other law or requirement or
benefit to remain as is."" However, retaliatory
transfers are Wlconstitutional ifdone in retaliation
for the exercise of protected First Amendment
Rights."
Location or Hearing - Venue

The issue of the location ofyour hearing
(also known as "Venue") is only relevant if you
are or have been transferred to another institution
in which the events leading to and claimed in the
infraction~. In Bates v Dalsheim70 , a New
York appellate court decided that the hearing
should be held where the incidents happened, not
wherc the person was presently confmed. If the
accused is transferred to another location,
witnesses or your being denied the benefit of live
testimony could prejudice your disciplinary
hearing'·. In a couple other cases, "security" and
67

Ullited States v Cacereys, 440 U.S.
741 (1979).

Oli", v Wakilla, 461 US 238 (1983);
103 S Ct 1741, 75 L 2d 813 (1983), for post
Wakina developments, see: Lilly & Wright,
Illterstate In",ate Transfer after Oli", v
Wakilla, 12 NE J Crim & Civ Confinement 71
(1986).

68

Ada",s v Waillwright, 875 F2d 1536
(I I th Cir 1989)~ Frazier v Dubois, 922 F2d 560
( I Oth Cir 1990); Pratt v Rowlalld, 856 F Supp
565 (N.D. Calif 1994).
69

70

17

"threat" can be the institutions defense of not
keeping tile hearing at the original location11•
Before claiming "wrong venue" make sure that
the institution is not able to claim "security
threat" as their reason for your transfer.
Notice and Time Umitations

In IVolff, the court held staff had to
give a prisoner a copy of the infraction at least
24 hours prior to a hearing to prepare a defense.
Some states require you to sign a receipt
showing you were "served." If you refuse to
sign, you may later claim you were never served
a copy of the infraction prior to the hearing.
But, if you don't raise the objection during the
hearing. that service could be considered
completed andlor waived by a court. Ofcourse,
a hearing officer could give you a copy, and ask
you, "if you want to proceed now, or wait
another 24 hoW'S." In some federal institutions,
this could mean another two weeks of
administrative segregation. waiting for another
hearing. Again, your assertion that you are in
segregation for an unbased "security threat"
should be raised.
Pleading guilty to charges at the
hearing doesn't bar a suit challenging the
adequacy of the notice or other aspects of the
hearing (i.e. notice given. were the rules you're
accused ofviolating is clear, etc.)"
Important issues regarding charges
against a prisoner is "were you notified of the
charges. and in time to prepare a defense or call
witnesses, and was the written charges against
you sufficient in content to prepare for a
hearing?". Written notice is required because it
requires the complaint against you to be clear,
specific and precise. Just verbally telling you
the charges. and not providing written charges is
NOT considered sufficient notice and prison
staff must provide an independent basis for
charging you in a disciplinary proceeding'·.

(...continued)
(Fla Dist Ct App 1985) (disciplinary hearing
must be at the institution where the charges
arose.)
72

GQljield v Davis, 566 F Supp 1069
(ED Pa 1983); lrby v YOUllg, 139 Wis2d 279,
407 NW2d 3I4 (1987)..

Bates v Dalshei"" 90 AD2d 485, 454
NYS 20 552 (1982).

73
Reeves v PeltcOx, 19 F.3d 1060 (5th
Cir. 1994).

71

74

Roesch v Waillwright, 474 So2d 1263

(continued...)

Tocco v Marquette Prisoll Wardell_

(continued...)

18

How 10 WIN Prison Disciplinnry Hearings

within 2 days or even 7 days'O. Still, in the 90's,
Notice of the charges are required before the
prison staff often fail 10 provide the minimum of
hearing."
24 hour notice. The burden is on you to pul
The single thing that slarts the
your
objection on the record during the hearing,
disciplinary process is when you are given the
and
litigate
if you desire and have eslablished
wriUen notice. You musl be provided the
grounds.
A
20
month delay has been considered
necessary time to prepare a meaningful defense,
prejudicial without good causeSI •
and to be present during the hearing".
Even with the vague language of many
Delay In Hearing States Claim
stale regulations regarding notice and time
limilations for disciplinary hearings, it is held thai
The court of appeals for the second circuit has
notice musl be given. and in your language if you
71
reaffinned thee New YOl'k Stale law that creates
do not understand English • Without notice of
a due process liberty interest in its
charges againsl you, due process is cerlainly lost
ndminislrative segregation rules. The court held
Even if you have been given notice of a frrst
that
prisoner's due process rights are violated
hearing. in writing, you must be given written
when they are not aftbrded a timely hearing as
notice of any 2nd or other hearings also." But. if
mandated by Slale law. Anselmo Solo, a.New
notice is offered. but refused. you cannot raise the
York slate prisoner. was placed in ad seg after
claim laler that ..they never gave you notice." If
being infracted for drug use and
you were never offered notice,
possession. The disciplinary
witnesses to this claim, will be
hearing was not held until two
helpful in a possible legal
Delay a Prisoners Slalualory
weeks after the misconduct
proceeding. Start by gathering
Time Limil For Hearing And
allegedly occurred. New York
written statements or affidavits
They Can Sue And WIN...
slate law requires that
if possible of these witnesses
SolO v. Walker.44 F.3d 169 (2nd Cir.
1995)
you may want to calion your
disciplinary hearings be held no
later than seven days after the
behalf to lestifY. The reason
"Notice" is required to be
misconduct occurs. Soto was
served upon you, is 10 give you
found guilty at the hearing and
the opportunity to gather and prepare the facts to
the finding was upheld on administrative appeal.
prepare your defense".
Soto filed a habeas petition in slate court
No maximum lime limil exists for
conlending the delay violated his due process
providing notice.
Withoul some reasonable
rights. The slate court agreed and ordered the
reason, you have nol been harmed IF you were
infraction expunged.
sent notice atlenst 24 hours before the hearing or
Soto then filed suit in federal court
pursuant to 42 U.S.C. § 1983 seeking money
damages conlending that the delay in his hearing
violated his federal due process rights. The
(...continued)
district court dismissed the complaint for failing
123 Mich App 395, 333 NW2d 295 (1983).
10 slate a claim. The court held that New York
7S
Bellitez v Wolff, 985 F.2d 662 (2nd
80
Cir. 1993).
Aviles v Scully, 154 AD2d 371. 545
NYS2d 847 (1989), and Allell v Stale,418
76
Cooper v Slteriff, 929 F2d 1078 (5th
NW2d 67(Iowa I 988).,Murray v State, 116
Cir 1991); Morgall v District olColumbia, 647
Idooo 744, 779 P2d 419 (Ct App 1989).
S Supp 694 (DOC 1986); GiallO v Sullivall,
81
709 F Supp 1209 (SONY 1989); Wolffv
Vogelsang v Coombe, 105 AD2d
McDolll,ell, 418 US 539, 563-64 (1974).
913,482 NYS2d 348 (1984). affd, 66 NY2d
835, 489 NE2d 25 I, 498 NYS2d 364 (1985);
77
WOllg v Cougltlill, 138 AD2d 899, 526
Joltnson
v Vitek. 205 Neb 745. 290 NW2d
NYS2d 640 (1988), Wolffv A/cDolll,ell, 418
190
(1980);
People ex rei Yode,- v H al'dy, 116
US 539, 563-64 (1974) .
ILL App 3d 489. 45 I NE2d 96S (1983);
78
Vaughll v Frallzell, 549 F Supp 426
Powell v Ward, 487 F Supp 931 (1975), aff'd
(NO ILL 1982), Notice is also discussed in
542 F2d 701 (2nd Cir 1976)( 7 days); Pitls v
WolffvMcDollllell, 418 US 539. 563-64
Kee, 511 F Supp 497 (D. De11981)(l4 days),
(1974).
meaning you may not be held in "pre-hearing
79
Spellmoll-Bey v Lyllatlglt, 778 F Supp
delention" without a written charge, or given a
338 (ED Tex 1991).
hearing.

Chapter 3 - DUE PROCESS
code § 251-5. I (a), mandating the commencement
ofdiscipliruuy proceedings wilhin seven days, did
not creale a federal constitutional claim. The court
of appeals for the second circuit reversed and
remanded.
The appeals court noted that prisoners
have no federal constitutional rightlo remain free
from segregation, however in numerous rulings it
has held that New York slate laws concerning
segregation, disciplinmy hearings and keep lock
creale a federal due process liberty interest which
can be enforced in federal court. The court
examined So Solo's pleadings and held that it was
apparent Soto claimed he had nol been given any
hearing until fifteen days into his administrative
segregation. The court noted that even a seven day
delay in at least an ad seg hearing violaled due
process for New York slate prisoners. The court
held that Solo had slaled a claim upon which relief
could be gmnted and remanded the case back to
the lower court for further proceedings. See Solo
v. Walker,44 F.3d 169 (2nd Cir. 1995).
[Reprinted wilh permission from Priso"
Legal News]
Hannless Errors

The "Hannless En"Or Rule" exists here
as it does in any court. IF, a misl11ke is made, but
the mistake does not harm you in any way. you do
nol have ground for a complaint. You lose your
right to raise the issue of "improper notice or
venue" if you fail to raise the issue during the
heming'l.
You may raise the request for a
continuance to prepare your defense, and based on
your groWlds, must be granted. Courts have
some limiled opinions on whether or nol a
meaningful defense can be prepared while in
solitary confmemcntlJ•
Comparing individual slate constitutional
laws to federal constitulional laws vary
considerably sometimes.
A disciplinmy
requirement in one state may vary along with the
case law supporting it. If you bring an action
based on a case of one slate. it may be dismissed
or you could lose, because your slate does not
have such a legal provision. Check you local slate
or federal jurisdiction by reading the similar cases
as to your complainl before filing. Also compare
your area to the Discipline Guidelines in
Appendix A (BOP), in the back oflhis book.
82

Warre" v Itvin, 584 NYS2d 365 (app
Div 1992).

83

Daigle v Helgemoe, 399 F Supp 416

(DNH 1975).

19

Right To Assistance of Counsel

Some courts have held that being in
segregation means you require assislance to
prepare for the hearing." Prisoners are nol
generally entitled to counsel (altorneys) until
criminal proceedings have been initialed against
them". Just for being placed in segregation prior
to such proceedings, does notlrigger the right to
counsel (attorneys). For more discussion on
this, U.S. v Gouveia. in footnote discusses the
issue in detail. A prisoners' argwnent being:
they don't have the skills or training to
reasonably represent their version ofa dispuled
factual incident. See CHAPTER 4,
NECESSITY OF MIRANDA WARNINGS.
Even though prisoners are not on a
technicallrial. if found guilty the prisoner may
face severe sanctions such as lengthy solitmy
confmement, transfer to maximum security, or
loss of subslantial statutorily created good time
credits. Such sanctions against a prisoner are
not appropriate unless a full and fair opportunity
to present one's side of a defense has been
granted. Juveniles have been gmnled the right
to an atlorney by the supreme court-. 'Of course~
prisons argue that attorneys in disciplinBI}'
hearings are more a nuisance than a help, unduly
complicating and delaying the proceedings
according to prison officials who have a desire
to see prisoners punished. even if it is unfair.
Prisons also claim attorneys creale an
adversarial climate at cross purpose to the
rehabilitative objectives of the disciplinmy
proceedings. In Gaull the supreme court
ignored the prison's biased and one-sided
argument against assistance lo juvenile prisoners
by attorneys. Prisons also claim the cost is
prohibitive. As most prisoners are indigent.
equal protection principals could require the
government to provide atlorneys to them". in
which prisons might also claim they need
attorneys to represent them and their interests.
As if prison officials don·t. which they do,
already have staff attorneys to assist them in
putting together a case against a prisoner.
Eng v Cough/i", 858 F.2d 889 (2nd
eir. 1988); Nix v Evall, 850 F. Supp. 455 (D
SC 1994).
8S

U"iled Slales v Gouveia, 467 US
180(1984).

86

ii, re Gault. 387 US I (1967).

Douglas v California, 372 US 353
(1963); Griffi" v l/Ii"ois, 35J US 12, (1956).

87

20

How to WIN Prison Disciplin!l1)' Hearings

In WolflvMcDolllle/JM, the courts came
to a compromise in favor of the prison oOicials
under the disguise of"better prison management."
It held that "attorneys were not required, and that
prisoners had no right to appointed or retained
counsel in prison disciplinary hearings.'.., The
court went on to say that situations involving
illiterate prisoners or issues so complex that
convicts would be unable to collect and present
the evidence necessary for an adequate
understanding of the case, they "should be free to
seek the aid of a fellow prisoner, or if that is
forbidden, to have adequate substitute aid in the
fonn of help from the staff or from a sufficiently
competent prisoner designated by the staff.''90
Some courts, and federal policy for BOP
prisoners, require that a prisoner be advised ofbis
limited right to representation91 • Before a prisoner
chooses to accept staff representation, read the
chapter, StaffRepresentatives and Witnesses.
After Wolff, the courts have tried to
further define the issue of prisoner representation.
The courts havc held that IF an prisoner may be
criminally charged, [example: assault on staff,
assault on another prisoner, drug possession, ctc.],
he must be provided the right to an attorney.91 The
reasons the courts were concerned with was not
the "assistance which counsel could provide at a
disciplimuy hearing," but with the "need to protect
the prisoner's rights in future criminal

88

Wo/ffvMcDolllre//, 418 US 539

(1974).
89

Bony v Who/ell, 796 F Supp 885 (ED
Va 1992); Wil/iams v State, 421 NW2d 890
(Iowa 1990).
Wo/ffvMcDolllre//, 418 US 539
(1974), Co/email v rumer, 838 F2d 1004 (8th
Cir 1988); BrowIl-E/ v De/a, 969 F2d 644 (8th
Cir 1992); Ba//a v Idaho Stale Bd of
COrTectiOllS, 569 F Supp 1558 (D Idaho 1984);
Caud/e-EI v Peters, 727 F Supp 1175 (NO ILL
1989).
90

9\

Stewart vJozwiak, 399 F Supp 574
(ED Wis 1975); Jolmakill v Racelle. I II AD2d
579,489 NYS2d 643 (1985); 28 CFR §
54 l.l7(b).

92

C/utchelle v Proclllrier, 510 F2d 613
(9th Cir 1975), rev'd sub "om Baxter v
Pa/migiallo. 425 US 308 (1976); Pa/migiallo v
Baxter, 487 F2d 1280 (I st Cir 1973), rev'd, 425
US 308 (1976); Craig v Hocker, 405 F Supp
656 CD Nev 1975).

prosecutions. The supreme court rejected this
exception in Baxter v Palmigiall0 9J•
The American Bar Association flipflopped regarding the "counsel issue." In the
ABA's Standards for Criminal Justice Standard
§ 23-3.2, at 23-41 (1986)(not reprinted because
of the degree ofconflict in applicale rules prison
fonow) they first say prisoners "have the right to
representation in disciplinary hearings," then
later retract that recommendation and prison
officials reconunend an "advisor ofsome sort."
The ABA standards for Criminal Justice are not
binding on prison officials and therefore prison
officials don't abide by them. Prison officials
usually do not abide by the rules held in the
Constitution, much less an agency who C8IU1ot
impose its. regulations on a prison.
Since the burden rests on the prisoner
to show why he/she should be appointed
representation their ability to access witnesses,
represent themselves and the complexity of the
issues are the only arguments'4. Of course,
prison stafffavor representation by another staff
member to ensure you loose. (See the chapter,
StaJI Reps & Witnesses)
Their usual
unfolUlded, defense of this staffrepresentative is;
prison staff would be unlikely to cooperate in
spurious (stupid) defenses or prisoners attempts
to frustrate the disciplinary proceedings. More
realistically, prison staff who actually help
prisoners, often are threatened by other staff, and
told their job is on the line by their superiors.
There clearly is no right to representation of
onc's choice at a disciplinary hearing, but if a
prioner refused to do what is necessary to obtain
representation, staff or otherwise, he cannot
claim that defect later on appeal95•
93

Baxter v Pa/migia"o, 425 US 308,
96 S.Ct 1551,47 LEd 2d81O (1976).

Stewart vJozwiak, 399 F Supp 574
(ED Wis 1975); see also, Aiki"s v Lash,S 14
F2d 55 (7th Cir 1975), vacated, 425 US 947,
modified 0" rema"d, 547 F2d 372 (7th Cir
1976). Gag"o" v Scarpelli, 411 US 778, 790
(1973) (addressing when counsel is required
in a probation revocation hearing.)
94

9S
He"drix v Faulkner, 525 F Supp
435,447 (NO Ind 1981), affd i" part, vacated
ill part, 715 F2d 269 (7th Cir 1983), cert
dellied, 468 US 1217 (1984): Law v Racelle,
120 AD2d 846, 501 NYS2d 959 (1986);
Dawes v Leo"ardo, 167 AD2d 585, 563
NYS2d (1990)(inmate refused to sign the staff

(continued...)

Chapter 3 - DUE PROCESS
The psychological condition of the
prisoner must be considered by the staff when
going before a disciplinary committee. In
appointing a staff representative. the prisoners
psychological state is relevant not only to help
devise a defense; rather. the staff representative
was to serve as an agent of the prisoner.
performing such services as intelviewing fellow
prisoners designated by the accused and
presenting the prisoner's chosen defense in an
understandable mnnneJ"'6.
Failure of a staff representative to
adequately represent the prisoner may be a basis
for overturning any action of the disciplinary
commiuee'7. If an prisoner does not object timely
to the quality of representation. this may constitute
a questionable waiver.

Right to an impartial Hearing Panel
Your right to an impartial DHO.
(disciplinary hearing panel) must be provided or
your due process rights have been violated. 98
Unless a prisoner makes his objection on the
record during or prior to the hearing, your
objection may be considered "waived" in a court
proceeding. Just because a disciplinary hearing
panel is not a judicial tribunal does not make it
not-impartial. in the Wolff case. the disciplinary
hearing panel was the Associate Warden [in
charge).
the
Correctional
industries

(...continued)
request two times); BrowlI v Coughlill. 165
AD2d 935, 561 NYS2d 99 (1990).
96

Ford v Commissioner o/Correctiolls.
27 Mass App 1127,537 NE 2d 1265 (1989).
review dellied. 405 Mass 1202, 541 NE2d 344
(1989).

21

Superintendent, and the Reception Center
Director. The court found this committec was
sufficiently impartial to satisfY due process. The
court dermed "impartially" in terms of hazards
of arbitrary decision making. The point the
court was trying to make was. a prison staff's
position alone does not disqualifY them. An
"impartial decision maker" is one who (I) inler
alia [amoung other things). (2) does not
prejudge the evidence nor assess evidence he or
she has not seen.
Unless required by statute or policy. a
prison disciplinary panel does not have to be
more than one person who hears the case".
Many instanoes exist where prison staff
may NOT participate in the disciplinary hearing
proce.ss- For example, the person who wrote the
infraction report or started the disciplinary
process may not sit on the disciplinaJy panel in
any way.lIlJ A similar approach was taken by the
court regarding the classification officer
responsible for designating whether an offense
was major. serious or minorOI . The same goes
for witnesses. investigating officers. and
individuals having personal knowledge of
material facts or who have a personal interest in
the outcome of the hearing are usually
disqualified from participating in the
disciplinary hearinglO1 •
In Villes v HowartPOJ , a prisoner was
denied due process when the hearing examiner
was the father of the prison guard who made the
accusations. and where the charges rested on
whether the guard or the prisoner was more
believable. Of course. if a prisoner says ..the
sky is blue." and a guard say the "sky is pink
with yellow and green polka dots," the guard
will be more believable regardless of his
ridiculous statements.
A prisoner must

97

Hilton v Dalsheim. 81 AD2d 887.439
NYS2d 157 (1981); Mallard v Dalsheim. 97
AD2d 545. 467 NYS2d 903 (1983).

98

Ramirez v Tumer. 991 F.2d 351 (7th
Cir. 1993); Diercks v Durham. 959 F.2d 710
(8th Cir. 1992: Palenoll v Coughlill. 905 F2d
564 (2d Cir 1990); Sallds v Waillwright. 357 F
Supp 1062 (MD Fla). vacated. 491 F2d 417
(5th Cir 1973). cel'l dellied. 416 US 992
(1974); Pmvell v Ward, 392 F Supp 628
(SONY 1975). modified. 542 F2d 101 (2d Cir
1976); Mathews v Eldridge, 424 U.S. 319. 96
S.CL 893.47 L Ed 2d 18 (1976); Wolffv
McDollnel. supra. Ward v Village 0/
Monroeville. 409 U.S. 57. 93 S. Ct 80. 34 L Ed
2d 267 (1972).

99

Myers v Askew. 338 So 2d 1128 (Fla
Dist Ct App 1976); 28 CFR § 541.14;
Lallgley v Scurr, 305 NW2d 418 (Iowa
1981).
100

Gick v Sarge"t, 696 F2d 413 (8th
Cir 1983).
101

Gates v Collier, 454 F Supp 579

(NO Miss I978),afI'd. 606 F2d 115 (5th Cir

1979).
102

Merrill v De Los Salltos. 721 F2d
598 (7th Cir 1983); AdalllllS v GUIII,ell. 729
F2d 362 (5th Cir 1984).
IOJ
Vines v Howard, 676 F Supp 608
(ED Pa 1987).

22

How to WIN Prison Disciplinary Hearings

remember that prison staff are prejudiced, justllS
you are in court once charged with a crime.
Some courts have gone on to further
describe who should be excluded from acting on
prison disciplinary panels. Those being not only
persons intimately involved in the investigations
and accusations, but also their immediate
subordinates'04 ; another court held that a prison
official whosc primary concern is security is not
an appropriate bearing officer when the prisoners
action is for threatening the security of the
institution1os • In circumstances where strong
personal animosity exists between a prisoner and
a prison official, the prison official may not serve
on the prisoner's disciplinwy commilleelOl5 •
Prisoners often feel that a person who sat
on previous disciplinary hearings should be
excluded from new disciplinary hearings. This is
not true. Even if an prisoner has sued the hearing
officer, without being able to show "actual
prejudice" they will be allowed to sit on the
hearing panel 107• A prisoner should carefully draft
his defense of"prejudice" to make sure they have
met the elements necessary to state a claim.
In cases where major sanctions may be
applied. some courts have required at lellSt one
member to come from a non-prison official 'Ol• As
usual with any other due process right. The right
to an impartial hearing officer or commiltee may
be waived by failing to raise the issue at the time
in the process when appropriate corrective action
could have been taken. J09

104

Collills v Vitek, 375 F Supp 856 (DNH

1974).
lOS

Powel v Ward, 392 F Supp 628
(SONY 1975), modified, 542 F2d 101 (ld Cir
1976).
106

Myers v Askew, 338 So 2d 1128 (Flo
Dist Ct App 1976). Sce also Malek v Camp,
822 F2d 812 (8th Cir 1987); McCalls v
AnllouralldCo., 254 F2d 903; Morriseyv
Brewer, 93 S.Ct 2593; Goldberg v Kelley, 92
S.CllOIl (1972).
107
Grall' v Sellkowski, 146 AD2d 948,
537 NYS2d 323 (1989).

lOB
Col/illS v Hallcock, 354 F Supp 1253
(DNH 1973).
109

Blackshear v Coughlill, 586 NYS2d
34 (App Div 1992).

Chapter 4 - WITNESSES

23

4 - WITNESSES

Testifying for Yourself & Calling Witnesses

You have the right to testify, and appear
for yow-self in a disciplinary procedw-e. Looking
carefully at your options to appeal, ifyou lose for
any reason. you also must consider how you will
handleyourdefense. CoW1s have found repeatedly,
that ifyou don't object dwing a hearing you accept
the procedw-e and cannot bring the issue later on
appeal.
Another common complaint by prisoners,
is they argue that "staff misquoted them," or "lor
they dido't say that". Often prison staffwill adjust
what you say, to meet their goals ofconvicting you.
So why not present a summary and argwnent, in
writing? Whcn staff ask you ifyou have anything
further to say, say "it is all in my writtcn defense."
By not presenting your defense verbally, and only
in writing, it forces staffto be a little more realistic
about the disciplinary hearings. It also prevents
stafffrom putting in their written decision. things or
conclusions you may not have said. If you go to
court, everything, even they're incorrect statements
as to what you said will become evidence either
against you or for you IF you only submit your
defense in writing. If called to a hearing and you
did not bring your written defense, request an
extension of time to get your written defense.
Disciplinary hearing officers will
somctimes reject your written statement, because
they don't want to be limited to a written defense in
their abuse of discretion and power. If the
disciplinory hearing panel wants to reject your
written defense, and insists on an oral presentation,
read your written defense, word for word, without
adding or leaving anything out. Then later, make a
notation that your written defense was rejected and
ask that it be put in the record that your written
defense was in fact rejected.
You have the right to call witnesses that
will testilY to subject matter relative to your
defense. Some stales limit the number ofwitnesses
you may call. So, chose your witnesses carefully.

Consider their possible testimony, their ability to
sound credible and be understood. Ifyou don't
.have access to that person prior to the he8ring.
consider what they may say, with them thinking
of what you might want them to say at the
hearing. Your witness, in an attempt to "help
cover" for you, and your defense is based on
truthful facts. could reduce the credibility of your
overall defense.
Rigbt to Remain SUent and its Effect

A prisoner should attend evety
possible hearing if they care about its outcome.
If an prisoner refuses to attend a hearing, the
court in Howard decided he had waived his
right to challenge the disciplinory panel's
decision lJo• If a prisoner suspects that even a
small possibility exists that further criminal
proceedings may take place from this
disciplinory action, ANY comments or
statements you make in a hearing may and will
be used against you in court
Of course, ifyou refuse to testify, your
silence could be used against you to suggest
guilt, increase the severity of punishment and
lesson your chances of winning. A written
statement is best ifyou intend on presenting any
testimony in your defense. Written testimony
cannot be misinterpreted and rewritten by the
disciplinory panel to suggest testimony that
actually did not take place in their written report
In Avalll, the court held a prisoner's
silence cannot be used in an adverse waylll. But

110

Howard v Kelly, 117 AD2d 1002,
499 NYS2d 547 (1986).
111
Avalll v Cliffol·d. 67 NJ 496,341
A2d 629 (1975). See also Pal",igia"o v
Baxter, 487 F2d 1280 (I st Cir 1973), rev'd,

(continued...)

How to WIN Prison Disciplinary Hearings

24

in lhe Palmigiallo ease, lhe court rejected lhis
position. In considering Baxter, a prisoner's
silence can, and in real life will be used as an
indication of guilt and against you ll2• The supreme
court has nffmned lhe Baxter position of "guilt
through silence. "IJ) The supreme court went
furlher to explain Baxter, that IF requested,
immunity should be granted to lhe prisoner's
testimony and could not be used against lhem in a
possible criminal proceeding. The court continued
to say the prisoner "must be offered immunity from
self-incrimination protected by lhe Fifth
Amendment, and may not be required to waive
such immunity.""·
Testimony and immunity does not bar lhe
prosecution of further criminal proceedings itself
and if your testimony on lhe stand contradicts
testimony in lhe disciplinary hearing, a prisoner
may be impeached by lhe contradictions"!. Often,
"immunity" is used to galher secondhand
information, to file additional charges against you,
removing lhe burden from the government and
putting lhe burden on you to prove them wrong.
My advice, "Don't ever say anylhing you
don't want repeated before a jury." You can still
argue without admitting lhe charges. If you are
going to lie, be consistent and never admit to
anyone lhe trulh, regardless how good of a friend
lhey may be. Often, indirect statements can be
considered signs ofguilt.
Even lhough disciplinary hearing panels
may deny lhis request, when faced wilh possible
criminal prosecution, request lhe disciplinary

(...continued)
425 US 308 (1976).
112

28 CFR § 541.15(d).

Scott v Kelly, 962 F2d 145 (2d Cir
1992), See also McLe//ell v Superilltelldellt, 29
Mass App 122,558 NE2d 5 (1990) (a
disciplinary repolt docs not require any
corroborating evidence olher lhan adverse
inference lhat can be drawn from a prisoner's
silence at a disciplinary hearing.)
114
Also see Uniform Law of
Commissioners Model Sentencing Act, § 4507(0)(4) (1985), "A prisoner, ofcourse, would
first be required to establish lhat a Fifth
Amendment interest was at stake." In Hampsoll
v Satrill, 319 NW2d 796 (NO (982), lhe court
held that "required participation in a urine- .
screening program did not violate lhe prisoner's
rights."
Il3

liS

(1972).

Kastigar v Ullited States, 406 US 441

hearing be postponed until after the criminal
proceedings.
Compelling Witnesses to Testify

If a prisoner fails to request wimesses
for lhe disciplinary hearing and you do not
object at the time, lhis is considered a waiver of
lheir testimony. The courts have found lhat you
refused your right to confrontation of lhose
witnesses" 6•
A disciplinary committee may reject
your request to bring witnesses for just reason.
Those reasons must be supported eilher by
"security and order" reasons, or they must
demonstrate that they tried to provide your
requested witnesses. In Wright v Caspari, 117 lhe
courts found that the decision by the disciplinary
committee to interview lhe proposed witnesses
and, on lhe basis oflhose interviews, refused to
allow lhe wimesses to testify at lhe disciplinary
hearing, did not violate Wright'S due process
rights. Remember that lhe witnesses requested
for your hearing must have somelhing relevant
to add to your defense, and not be repetitive of
testimony lhe olher witnesses might give.
Federal and State hearings vary in
disciplinary hearing procedure. The Supreme
Court held that if prison officials refuse to call
lhe witnesses you request, lhe burden is on lhem
to explain lheir decision, at least in a limited
manner". However, lhey need not do lhis at the
time of the hearing. The disciplinary committee
may come forward wilh an explanation after you
sue lhem. If lhey do lhis, request sanctions
against lhem. Federal and most State laws
require lhat lhe reasons be documented at lhe
time oflhe hearing ll9•
In Gree" v Nelsoll and Homer v
Monis llD, staff should consider obtaining
written statements from lhe prospective
116

Go"zales v Lefevre, 105 AD2d 909,
482 NYS2d 409 (1984).
117
Wright v Caspari, 779 F Supp 1025
(ED Mo 1992).

POl1levReal, 471 U.S. 491,495,
105 S.Ct. 2192,85 LEd 2d 553 (1985).

118

People ex reI Vega Smith, 66 NY2d
130,485 NE2d 997, 495 NYS2d 332 (1985);
MeGi""is v Stevens, 543 P2d 1221 (Alaska
1975).
119

120

Greell v Neholl, 442 F Supp 1047

(D Conn 1977); Homer v Monis, 684 P2d 64
(Utah 1984).

Chapter 4 • WITNESSES

25

witnesses, if the disciplinary committee does not
call these persons to testify as you requested, and is
sometimes required by state law Ul • In some states,
you have the right, or you can waive that right to be
present at the interviewl D • !fyou are excluded from
the proceedings, or you are denied access to
confidential docwnents, your lawyer cannot be
excluded. In Wag"erv Wi/lifordllJ, a prisoner was
under investigation by the FBI for allegedly kiJIing
a fellow prisoner and the prison staff still denied his
attorney access to the infonnation, even though a
lower court found the attorney trustworthy, the
court said this was wrong and prejudicial.
In Wisconsin, the law requires statements
of unidentified witnesses to be "under oath and
have to be coITOborated, and could not be used
unless the disciplinary committee found that
requiring the wibless to give live testimony would
pose a significant risk to bodily honn to the
witness." In both federal and some states, a
disciplinary committee could exclude a prisoner
from a hearing when the prisoner's witnesses were
testiJYing because of probable, not possible
disruption or threatslU • The courts also required
the prison staff to docwnent the reasons in the
record so the prisoner could evaluate them before
filing for administrative appeal lZ5 •

Prisoners may, and I recommend,
presenting supporting affidavits in their defense
ifwitnesses are not available'1l. See chapter 20
for an affidavit example. In Wo!O' 29the Supreme
Court conditions this with "reasonable." An
institution may claim it has a legitimate interest
on limiting the accused's access to other
prisoners for the purpose of collecting
affidavits lJo• In some circwnstances. you may
request that a staff member assist you in
gathering affidavits if staff deny you the
opportunity to do so.
Even though "some" limitations of
presenting docwnentary evidence exists, an
absolute ban is unconstitutional. In Massop v
LefevreUl it was held that constitutional
violation existed when a hearing officer refused
to view or lislen to an' audiolvideo tape
recording of the events at issue.

Witnesses At a DifTerent Institution

Right to Cross Examine Witnesses

If a prisoner has been transferred to a
different institution and he requests witnesses from
the previous institution a telephonic hearing with
the witnesses is acceptable with speakerphones and
an argwnent for procedural eITOr will be denied

with this method l26• Telephone interviews and
testimony are approved by the courts, WId found
acceptable to save time, money, convenience
and the possible quantity of hearings to take
place J:l7.
Witness Affidavits

The right to confront and cross
examine witnesses by you directly does not
exist in disciplinary hearings. In Wolff v
McDonnell the court gave many reasons 8
prisoner could be denied the chance to cross
examine witnesses. A prisoner also does not
126

Hi/tOil v Da/she;III, 81 AD2d 887,439
NYS2d 157 (1981); Jacksoll v Kullllllam" 109
Mise 2d 437, 440 NYS2d 154 (S.Cl. 1981).
121

122
Lowrallce v Cough/ill, 98 AD2d 733,
469 NYS2d 148 (1983).

Wagllerv Wi/liford, 804 F2d 1012 (7th
Cir 1986), appeal after rellland, 902 F2d 578
(7th Cir 1990).
124
Cortez vCouglrlin, 67 NY2d 907, 492
NE2d 1225,501 NYS2d 809 (1986).
123

12S
JOlles v Smith, 116 AD2d 993, 496
NYS2d 712 (1986) (institutional safety and
institutional goals must be shown
to be jeopardized before an inmate can be
excluded when a witness called by inmate
testifies.)

In re Plunkett, 57 Wash App 230,
780 P2d 1090 (1990).
127
Rodgers v Thomas, 879 F2d 380
(8th Cir 1989); TOm!s vCouglr/in, 161 AD2d
1080, 557 NYS2d 636 (1990).
128
28 CFR § 541.15(c), se also
Bartholomew v Reed, 477 F Supp 223, 227
(D Or 1979), modified, 665 F2d 915 (9th Cir
1982); Clroclrrek v Oregon State Penn, 21 Or
App 406, 534 P2d 1175 (1975).
129
Wolffv McDom,el/, 418 US 539,
566 (1974).
130
Gonzales v Lefevre, 105 AD2d 909,
482 NYS2d 409 (1984).

Pace v Oliver, 634 F2d 302 (5th Cir
1981); Massop v Lefevre, 127 Mise 2d 910,
487 NYS2d 925 (S.Ct 1985).
131

26

How to WIN Prison Disciplinary Hearings

have the right to call adverse witnesses./Fthey arc
only being called to be cross c.xamined regarding
material already in the incident report or written
memo'sm.
Cross examination of previously
unknown prisoner accusers carries an obvious risk
of reprisal. and could influence other potential
informants, (RATS) to refuse to come forward or to
testilY. Use the Americall Bar Associatioll 'sJJJ
argument to calling those adverse witnesses and
don't rely on the Wolff case here. Courts
acknowledge that a possible "abuse ofdiscretion"
in denying a prisoner the opportunity to crossexamine witnesses exists, and will review each case
individuallyU4. The lacking ofwrillen reasons will
significantly complicate the courts review to
detennine whether the disciplinary committee
exercised "reasonable" discretion, or whether it
was arbitrary and imposed improperly.

Prisonen Testimony Against You & Their
CredibWty
When you face a possible snitch in
disciplinary hearings, you should consider hislher
history and discredit them. History such as; (I) a
pl'Ofessiooal snitch may have special incentives for
fabricating stories against you, making his motives
and reliability suspect; (2) admitted or a conviction
drug use, positive UIA's are things that afiect his
menlal slate. This would provide the foundation lor
an expert such as a psychologist or even yourself.
who understands about cocaine and narcotics and
its affects of psychosis and organic brain
dislimction; (3) dig deep in this rat's reputation if
you can. Does he have a reputation on the
compound for telling the truth. If a character
witness, even through an affidavit cannot testily
about the rat's reputation. they may be able to
provide an affidavit or testimony of hislher
character traits, or lack of truthfulness abilities.
Prison official are not required to provide
you with the names of all prisoner witnesses,
confidential infonnants or even the name of the
prisoner aecuserus because they usually claim,

falsely ofcourse, "security reasons." The record
should include indication that the disciplinary
committee made inquiry into reliability of an
infonnant and the concluded infonnant was
reliable. u6 Appellate courts also will not
substitute tlleir view for that of a disciplinary
board on matters relating to witnesses. 1J7 Snitch
testimony usually needs to be supported by other
evidence in order to be found reliable.
An interesting case in Russellu, the
disciplinary hearing officer refused to call the
informants, and the accuser who claimed Russell
assaulted him, refused to speak at the hearing.
After being convicted the flfSt time, and
appealing, he won a new hearing. At the
second hearing. same thing as before, and found
guilty again. He appealed and won on appeal,
and was never tried the third time. Russell sued
in court claiming the hearing officer failed to
independently assess the infonnant's reliability
and credibility. breaching a clearly established
due process right.
A big problem prisoners face against
the prison officials, is the prison's allegations of
the importance of ..the prison's limction and
security" compared to an prisoner's few
protected rights. In court, prison officials often
use the unbased and often abused excuse that "it
threatened the security and orderly running of
the facility." You should attack that argument by
requesting supporting evidence. The purpose
of the disciplinary hearing is supposed to be
accurate and fact-fmding. Cross examination is
supposed to make this easier by exposing faulty

(...continued)
Wells v Israel, 629 F Supp 498 (ED Wis

1986), affd, 854 F2d 995 (7th Cir 1988); but
in Shallgo v Jurich, 608 F Supp 931 (NO ILL
1985), the incident report was deficient
because the identity of the victim was
disclosed, but not the accomplices.
136

Kyle v Hallbeny, 677 F2d 1386

(11th Cir 1982).
132

Bany v Whalell, 796 F Supp 885 (ED

Va 1992).
133

Americall Bar Associatioll. § 23-

3.2(b).
134

Smith v Massachusetts Dept of
Correctiolls, 936 F2d 1390 (I st Cir 1991).
US
Melldoza v Miller, 779 F2d 1287 (7th
Cir 1985), cert dellied, 476 US 1142 (1986);
Jellsell vSatrall, 332 NW2d 222 (NO 1983);

(continued...)

137
Galimore v Lalle, 635 F Supp 1367
(NO ILL 1986); Gibsoll v Roush, 587 F Supp
504 (WD Miss 1984); but in Anllstead v
Stale, 714 F2d 360 (5th Cir 1983),the

appellate court criticiZed the magistrate for
giving 100 much deference to fmdings of
disciplinary proceedings, and ordered
magistrate to decide case on its merits.
138

Russell v Scully, 782 F Supp 876
(S.D.N.Y. 1993), rev'd 15 F3d 219 (2nd Cir
1993).

Chapter 4 - WITNESSES
perceptions, misidentification, bias, clouded
memory and retaliation. Unfortunately, this hardly
ever happens in reality. After the question of Wolff,
how are these "alleged" goals offairness achieved
without cross-examination? In addition to Wolff,
the supreme court has held that "if cross
examination is to be denied because the
disciplinary board does not want the prisoner to
learn the identity ofthe witness (RAn, one method
is for the board to call the witness (RAT) before thc
board in order to understand if the witness is
credible, rather thanjust accepting the infonnant's
(RAT's) unchallenged hearsay statements or
docwnent describing what the witness would have
said ifcalled to do SOU9.
A method used in federal procedure and
some states, is to allow the prisoner to present
written questions to the hearing officer at the start
of the hearing, to ask the witness dwing the
hearingl40• An infonnants credibility, along with
staff's should be a consideration in every hearing.
In Lamoureux, the court required the board to
investigate and fmd if the infonnant's infonnation
is reliable l41 • In Melldoza, prison staff were
ordered by the court that they must docwnent in
writing, and include for the hearing officer a
statement of reliability of the infonnant in a
confidential report. l42
Double Jeopardy
A.
Your Defense Against Double
Jeopardy
Even though other courts since have
struck down this theory, Casper Forte won. A
prisoner in Massachusetts was charged with
139

WoljJvMcDollllell, 418 US 539,590
(1974)(Marshall, J, dissenting); McGillllis v
Stephells, 543 P2d 1221, 1231 n28(Alaska
197 5)~ WilkerSOli v Oregoll Stote COlT, 24 Or
App 61,544 P2d 198 (1976); Casper v
Marquette Pmoll Wardell, 126 Mich App
271,337 NW2d 56, 58 (1983). Also see, HellSley
v Wilsoll, 850 F2d 269, 276-277 (6th Cir 1988);
Frietes yAuger, 837 F 2d 806, 810-11 (8th Cir
1988), Vasquez v Cough/ill, 726 F Supp 466
(S.D.N.Y. 1989).

assaulting a guard. and the court decided on
March 8, 1995 in Commonwealth v Casper
Fone, No. 97548 [unpublished opinion] the
double jeopardy issue. Mr. Forte was charge
with assaulting a guard, among other things. He
was charged in a disciplinary hearing and later
indicted in court for events from the same
actions. He was found guilty and sanctioned by
the goon (kangaroo) court, and then prosecuted
in stale court. Mr. Forte moved the court to
dismiss based on Double Jeopardy, and U.S. v
Halper,l4J and won. Since the origional printing
of the Forte opinion here, several courts have
rejected the argument and the case was not
published. However, MassachuseLts prisoners
might be able to use the case.
The supreme court applied the ruling
in Halper to an administrative sanction in
Kvitko. I" New developments in law have forced
courts to examine whether prison sanctions may
be punishment for the purpose of double
jeopardy. First, the U.S. Supreme Court and
the Supreme Judicial Court clarified in Halper
and Kvitka, respectively. that double jeopardy
encompasses administrative punishment that is
outside the criminal judicial system. Second, in
the Massachusetts Dept. ofCorrections created
the DDU with clear indications that the DDU
has the continuing purpose of maintaining a safe
prison environment and that the DDU has a
different. specific purpose: to punish prisoners
for misbehavior. The wording and method your
argument before the court will probably depend
on whether you prevail or nol. Be sure to
understand the exact defmition of your
disciplinary makeup and its legal basis.
In u.s. vAustin'IJ. the issue deals with
forfeiture of property. But the court held that
regardless of the value of property, or the cost Lo
the government, forfeiture was punishment. In
analysis, since segregation is constitutionally
protected. it would also be considered a
"grievous loss" and subject to a double jeopardy
argument
For more infonnation on the Double
Jeopardy issue, write to Forfeitwe Endangers
American Rights, (FEAR), 265 Miller Ave, Mill
143

28 CFR § 541.17(c); Bom,eyv Oregoll
State Pellitemiary, Correctiolls Div. 16 Or App
509,519 P2d 383 (1974).

U.S. v Halper, 490 U.S. 435, 109
S.Cl. 1892, 104 L.Ed2d 487(1989); U.s. v
Austill,_ U.S._. 113 5.Ct 2801 , 125
L.Ed2d 488 (1993).

141

144

14{)

Lamoureux v Superimelldellt, 390 Mass
409,456 NE2d 1117 (1983).
142
Melldoza v Mille/~ 779 F2d 1287 (7th
eir 1985), cert denied, 476 US 1142 (1986).

27

Kvitka v Board ofRegistration in
Medicine, 407 Mass 140 (1990).
145
U.S. vAustin, _ U.S._. 113 S.Ct
2801, 125 L.Ed2d 488 (1993).

How to WIN Prison Disciplinary Hearings

28

Valley, CA 94941, (415) 388-8128. The book is
$20.00 to victims of Double Jeopardy and
prisoners and $40.00 to non-prisoners.
B.
The Prison's Attack On You With
Double Jeopardy

An infraction doesn't bar a criminal
prosecution.l 46 You can get infracted and
prosecuted in court for events from the same
circumstances while in prison. Sure it is "Double
Jeopardy." This double jeopardy issue should be
considered by every prisoner when considering
asking for "immunity" during a hearing. What you
say with immunity in a disciplinary hearing can
and wiU be used against you ina criminal
proceeding. In The reasoning supporting your
defense against double jeopardy is your
"substantial loss," "grievous", or "interest loss."
The government abuses their supporting cases in
defense of their position to keep pummeling you
into the ground and get away with it. Cross
reference these cases they quote. Many have been
limited and overruled with other cases.
The argument ofthe government
will use is that an administrative finding of guilt
and subsequent pWlishment is purely administrative
and does not constitute punishment and a long list
of cases support that argument. 141 Specifically, in
Commollwealth v Brooks, slIpra, [I]n prison
disciplinary hearings, the aim, is not primarily to
punish, but to maintain safe, secure, rehabilitative
environment.
You want more examples of how prisons
have prosecuted prisoners twice for the same
actions arising from the some events. I don't have
the room to print them all. In Hayes .49 the 7th
Circuit rea1fmncd its holding respecting wrillen

146

u.s. v Newby,

I I F.3d 1143 (3rd Cir.

1993).
147

reasons in subsequent litigation arising out of
the same incident.
The double jeopardy clause protects
only against successive criminal trials. A prison
disciplinary hearing and civil litigation generally
arc not "criminal trials" protected under the
double jeopardy clause and has been called
"administrative:' The burden of
proofrequired for a court trial is greater than in
a disciplinary hearinguo•
Another unpopular reasoning among
prisoners could include successive disciplinary
hearings from the same actions. It has been
found, that this is not "double jeopardy." The
thinking of this. relates to two infraction issues
ofconduct within the same conduct do not mean
d,oublej~pardy.1S1
I fmd the reasoning of the courts
confusing and so vague, sometimes they dance
around an issue to present their decision without
actually saying anything relative to the
prisoner's full available constitutional rights. In
Commollwealth v Brooks/JJ,the courts said:
"If they [prison officials] arc required
to make a choice between internal
discipline and criminal prosecution,
they would be unable to maintain
necessary order and security of their
institutions. Prison officials would be
forced to permit conditions to
deteriorate, foregoing security, order,
safety and rehabilitation in the hope
that violent prisoners would be
brought to trial, convicted and
incarcerated in an institution with
greater security. Allernatively, the
prison officials could impose internal
disciplinary sanctions. However, as
here, six months of restricted
privileges may be the maximum
ISO

Lalldmall v Royster, 333 F Supp 621

(ED Va 1971)~ III re Lamb, 34 Ohio App 2d

U.s. v Duke, 527 F2d 386 (5th Cir),
eert dellied, 426 US 952 (1976)~ U.S. v Stead,
528 F2d 257 (8th Cir 1975), eert dellied, 425 US
953 (l976)~ Rivera v Toft, 477 F2d 534 (lOth
Cir 1973); Colbetll v Civilelli, 516 F Supp 73
(SO Ind 1980), and the list goes on.

85, 296 NE2d 280 (1973); U.S. v Newby, II
F3d 1143 (3rd Cir 1993) (held that the 3rd,
8th & lOth Circuit have held that disciplinary
sanctions imposed by prison officials for
prison infractions do not bar a subsequent
criminal prosecution.)

148
U.S. v Risillg, 867 F2d 1255. 1259
(10th Cir 1989); U.S. v Boomer, 571 F2d 543,
546 (lOth Cir 1978); Gloria v Miller, 658 F
Supp 229 (W.O. Old 1987); Commollwealth v
Brooks, 479 A2d 589 (pa Super 1984).

Vaughll v Frazell. 549 F Supp 426
(NO ILL 1982); Townes v Hewitt, 84 Pa
Commw 151,478 A2d 548 (1984); also see
Amezquita v Coughlin, 169 AD2d 857, 564
NYS2d S84 (1991).

149

IS2

Hayes v Thompsoll, 637 F2d 483 (7th
Cir 1980).

lSI

Commollwealth v Broob, 330 Pa
Super 335, 479 A2d 589, 594-95 (1984).

Chapter 4 - WITNESSES
penalty at their disposal. Should such action
preclude subsequent criminal prosecution, in many
instances, the interest of society as a whole in
punishing infractions of criminal law will be len
unprotected. We refuse to force such a choice on
prison officials."
Even if a criminal trial ends up in
acquittal, the prison's burden of proof does not
meet the same standard as required in courtUJ •
Some standards recommend that where the prisoner
is convicted of the criminal charge, no further
institutional proceedings may be pursued by the
prison lSt •
Necessity of Miranda Warnings in Prison

I should hope I don't need to detail your
Fifth Amendment right to keep quiet. In
Miranda lJJ the supreme court held that you "have
the right to remain silent without understanding
your rights, and you have the right to counsel,
private or appointed." In the July, 1994 issue
Prison Legal News, an article discusses in detail
about "Prisoners Retain Right Against SelfIncrimination", Phelps v U.S. Federal
Govenllllenl, 15 F3d 735 (8th Cir 1994). While
prisoners retain some Mirallda rights in prison, it
only applies if a prisoner's "liberty" within the
prison is further restricted. Courts will review the
Mirallda issue on a case by case basis. lS6
Prison Legal News n:pol1ed in June 1994,
Garcia v SingellarylJ7. Garcia was a prisoner in
Florida and was observed by a guard feeding a fire
in his cell with sluffmg from his mattress and other
things. The guard directed Garcia to leave his cell
and the guard put out the fire like a dutiful guard is
supposed to do. Then, the guard asked Garcia why
he had sct the fire. Garcia said "1 no get my
canteen... I have my rights." Garcia dido't get his
canteen or his Mirallda rights and was convicted in
state cowt for First degree arson. He sought relief
under federal habeas corpus and it was denied. The
appealscourtaOinned. In Malhis v U.S., 391 U.S.
Rusher v Arnold, 550 F2d 896 (3rd Cir
1977), but compare Cal Penal Code § 2657(a)
(West 1993).
1S3

154
Pl1IiII v Slale, 274 SC 565,266 SE2d
779 (1980), cert dellied, 449 US 1036 (1981).
ISS

Mirallda v Arizolla, 384 US 436

(1966).
IS6

Garcia v SillgletalY. 13 F.3d 1487

(11 th Cir. 1994).
IS7

Garcia v SillgellDly, 13 F3d 1487 (11 th

Cir 1994).

29

I, 88 S.Ct 1503 (1968), the court applied
Mirallda to prisoners. In this case, the II th

circuit followed the 9th and 4th circuits to
conclude that a persons' status as a prisoner does
not automatically constitute "in custody" for
Miranda purposes.

Guess what, Mirallda doesn't apply
specifically to prison disciplinary hearings or
generally in a prison setting in the same way as
it does in a possible criminal prosecution. In
Baxler, the Miranda does not apply in the same
way to interrogations relating to disciplinary
proceedings. u, Prison officials are not required
to give a prisoner Mirallda warnings during an
investigation of internal institutional rules
violations, since the prisoner is not "in custody"
in such circwnstances for Miranda purposes. U~
In Bradley , the court considered the fact thot
"just because a person is in prison. does not ipso
faCIO (by the fact itself~ by the mere effect of an
act or fact) render an interrogation custodial."
Miranda, only applies where the government
investigation relates to a possible criminal trial,
but not where it relates to internal disciplinary
hearings.
But, if your "informal, UD-Mimnda'd"
statements are later used in a criminal trial, the
statements may (meaning "might") not be used
against you without a Mira"da warning at the
disciplinary henring 'dO. Some courts have
followed rulings from the 9th and 10th Circuit
Court of Appeals that ANY statements taken
from a prisoner who has NOT been rend their
Miranda rights CAN be used against them in
courl 161
Probably the best advice I ever gol
from a lawyer, was, "The only time anyone
from the government wants to speak with you,
they just want to charge you with somelhing and
ISS

Baxler v Palmigia"o. 425 US 308,
96 S Ct. 1551,47 L Ed2d81O (1976).
IS9
Bradley v Siale, 473 NW2d 224
(Iowa Ct App 1991), (the court had to look
flfS1, at the total circumstances surrounding the
interrogation to determine whether the inmate
is subject to more that the usual restraints on
his freedom to depart.

160
Gra,,' v State. 154 Go App 758, 270
SE2d 42 (1980), see also, People v CaIT, 149
Mich App 653, 386 NW2d 631 (1986);
Malhes v United Slates, 391 U.S. I, 88 S Ct.
1SO, 20 L Ed2d 381 (1968).
161

Garcia v Singellary, 13 F 3d 1487

(11th Cir 1994).

30

How to WIN Prison Disciplinm)' Hearings

they just want to charge you with something and
make it worse." Don't ever soy anything, you don't
want repeated, twisted and analyzed before a jury.
You should already know tbis. I still gel lellers
from guys, saying "they questioned me for 10-days
without giving me my rights, then infrocted me.,,"

Chapter 5 - EVIDENCE

31

5-EVIDENCE

Disciplinary Evidence Must be Reliable

Applying these principles to the case at
bar, the court held that nevertheless, the hearing
committees rmding ofguilty was not supported
by the evidence. The guard who had co-signed
Michael Walsh is a New York state
the infraction undennined its reliability by
prisoner. He was infracted for allegedly exposing
testiJYing at the hearing that she did not see
himself to and tlu-eatening a prison guard. At the
Walsh expose himself or threaten the other
diseiplinary hearing, Walsh called as a witness
guard. Thus, Walsh's due process
another guard who had co-signed
rights were violated by the fact
the infraction report. The guard
Prison Staff must provide
that the hearsay evidence
testified that she was present on
you with evidence they use
the occasion and did not see
admitted against hinl (the
against you, but the also are
infraction report) was not
Walsh expose himself nor hear
required to provide you
reliable. The court denied the
him threaten the other guard.
with any evidence they
defendants summary judgment on
Despite tbis, the bearing officer
have that would indicate
this issue.
fO\Uld Walsh guilty and sentenced
The court granted the
him to six months in segregation
your innoccnse.
Chavis v. Rowe. 643 F.2d 1287
defendants qualified immunity
and a loss of privileges. Walsh
(7th Cir. 1981)
from money damages holding
administratively appealed the
.....the defendant was not placed
hearing result and it was
on notice that any disciplinary
overturned due to the conflicting
rmding based on tainted evidence (i.e. an
evidence at the hearing. Walsh then med suit in
unreliable misbehavior report) constituted a
federal court seeking money damages. He claimed
violation of the plaintiff's due process rights."
that his right to due process was violated when he
Because neither the supreme court nor the
was found guilty of an infraction when contrary
second circuit had held that tainted evidence
evidence was presented at the hearing.
does not meet the 'some evidence' standard
The defendants moved for summary
judgment on all the issues. The district court
approved by those courts. See: Walsh v. Film,
865 F. Supp. 126 (SO NY 1994).
discussed the relevant standards that courts apply
when reviewing prisoners' civil rights claims
arising from disciplinary hearings. Courts must
Access to Evidence
only determine if "some" evidence supports the
hearing committees rmding of guilty, in practice
Even if evidence indicates you are
innocent ofthe charges, the disciplinary panel is
this has come to mean 'any' evidence. Thus,
required to provide you this material. 162 In some
exculpatory evidence is irrelevant because
"although it presumably could have allowed the
situations, evidence or copies of the evidence
disciplinary board to reach a contrary conclusion, it
must be supplied to you to prepare your defense.
would not have nullified the evidence of guilt on
which the board relied. Once a court determines
162
that the evidence supporting a disciplinary hearing
Clravi3 v. Rowe, 643 F.2d 1287 (7th
is reliable, its review ends. Reviewing courts are
eir. 1981) (The DHO must give you copies of
not to determine whether evidence in the record
any exculpatory evidence for use at the
would support a contrary conclusion.
hearing).
As reported in Prison Legal News

It

32

How to WIN Prison Disciplinary Hearings

Staffis alID required to include the specific charge,
date, lime, and place of the alleged misbehavior
along with the supporting evidence. You are also
entitled to a wriuen explanation of the procedures
to be followed and your rights during the hearing.
[II Grillo the DHO altered evidence during the
hearing and using the altered evidence at the
hearing violating Grillo's due process rights. 161
Copies ofdocwnents in some hearings are
required to be provided to you. In Scarpa v
POllle l64 , the prisoner was accused of writing a
disrespectful and abusive leller to the prison
warden. When preparing his defense, Scarpa was
denied a copy of the alleged leuer. His defense
could deal with several issues relevant to being
able to review the alleged leuer as follows:
(I)
What is the definition of
"disrespectful and abusive" within a
prison environment,
(2)
Is the letter really "disrespectful
and abusive", or are the staff picking at
straws,
(3)
The letter was not written by
Scarpa.
During the Scarpa disciplinary hearing, due
process is violated within the scope of his
Constitutional rights by not providing a copy of the
leiter for review by the prisoner. Another case
similar is in YOUIIgl 6J who was accused ofwriting
a threatening letter to his cellmate. The court
decided that the prison staffviolated YouIlg"s due
process rights when he was not present at the
disciplinmy hearing, and the threntening leiter was
not produced. The court's basis for the denial of
due process was: the allegedly "threatening leuer"
was not produced at the hearing either. The hearing
was subjective not objective.
Criminal trials and administrative law or
hearings differ from prison disciplinary hearings.
You have less rights than any other. You do have
the right to disclosure of the evidence used against
you. In Chavis v RowelM the 7th Circuit has
analyzed the issue and found an existence to due
process rights and you receiving evidence staff
163

Grillo v Cough/ill, 31 F.3d 53 (2nd Cir.

1994).
164

Scarpa v POllle, 638 F Supp 1019 (D
Mass 1986).
165

Youllg v Kaml, 926 F2d 1396 (3rd Cir

1991).
166

Chavis v Rowe, 643 F2d 1281 (7th Cir),
cert del/ied, 555 F Supp 137 (NO ILL 1982) and
Mel/doza v Miller, 779 F2d 1287 (7th Cir 1985),
cerJ dellied, 476 US 1142 (1986).

intend on using against you. To better
understand tlle required clements if you were
wronged, compare Brady v MQly/alld and
Ha171s v MacDolla/d.' 61
You must object on the record to
information or evidence used against you that
you have not seen, or did not know of. until the
hearing. You must 1Iy to gel, on the written
record that prison staffdid not allow you lime to
prepare a defense against the evidence. You
should also request an extension of time,
normally 24 hours is all required to be provided,
to investigate and prepare a defense. Ofcourse,
an investigation is a joke in reality, but it is an
issue the courts will examine if brought to court.
Try to get every objection, into the written
record by asking the bearing officer to note your
objection, or follow up with a written list of
objections, and ask it be included in the file.
Evidence In Drug Tests

Test results indicating the presence of
illegal drugs are often used as "some" evidence
in disciplinmy hearings. Based on these results,
disciplinary hearing committees will often
recommend loss of good conduct lime,
revocation of parol or probation, or loss ofyour
parole date, in addition to usually, maximwn
allowable segregation time.
Drug tests are divided into five basic
types:
(I) Enzyme Multiplied Immunoassay Technique
(EMIT), accuracy = 93 - 95 %, being replaced
by KIMS because of error rates with other
medicines, and contamination.
(2) Radioimmunoassay (RIA), accuracy =
minimal % (not used much anymore because of
errors).
(3) Florescence Polarization Immunoassay
(FPIA) accuracy =? %
(4) G as- C h rom a to g rap hy 1M as s
Spectrophotometer (GCIMS) accuracy = 100%
(5)
Thin Layer Chromatography (TLC)
accuracy = minimal %
(6) (KIMS), new, and replacing EMIT tests
Some drug tests analyze samples
differently. Specificity shows how many false
positives are given in the specimen result.
Sensitivity shows how many false negatives are
167

Brady v Mary/and, 373 US 83, 83 S
Ct1194, 16 L Ed 215 (1963) compare with
Harris v MacDona/d, 555 F Supp 137 (NO
ILL ) 982), and Mendoza v Mille,., 779 F2d
1287 (7th Cir 1985), cerJ del/ied, 476 US
1142 (1986).

Chapter 5 - EVIDENCE
given in the specimen result. When testing, be sure
your hands are clean, a small amount of soap thaL
will clean proteins, not detergent, will make a
sample untestable.

Sweat Patch Drug Testing

33

(including methaphetamines). As this is written.
PhannChem is seeking approval for the testing
ofmarijuana Not being used currently, they are
also working on a detection process that works
within 20-30 minutes, and one that detect
alcohol use.

PhannChem hos come out with a new

testing procedw-e, CWTently being used in Michigan
called the Sweat Patch. The sewat patch looks like
a large band-aid with a serial number that is
applied to a persons upper ann or lower midriff to
absorb sweat. The patch must be worn for a
minimum of 24 hours according to the Phann
Chern brochw-e. The patch allows small molecules
such os water, oxygen and carbon dioxide to pass
through. Larger molecules including drugs, are
caught on the skin side of the patch in an absorbent
pad. The two kinds of sweat are Insensible
perspiration, passive, uncontrolled loss of sweat
from the skin occurring regardless of physical
activity. The second type is Sensible perspiration,
is active sweat, controlled loss of sweat from
specific glands in the skin. Typically, people
produce 300 - 700 ml of insensible sweat each day.
When sending the patch in for testing, the
adhesive is peeled back from the skin, the patch is
removed, using tweezers or some sterile method,
and placed in a special sealed envelope to avoid
contamination. The patch indicates tampering with
and is reported to not be affected by bathing.
PharmChem reports that clinical studies have
shown that drugs and drug metabolites on the pad
are stable for days after removing at room
temperature and months in a freezer. Once
PharmChem receives the patch, any drugs are
washed from it into a liquid extraction solvent. The
solvent is then tested by assays that are similar to
those used for testing urine samples such as
lnununoassay (ELISA or RIA) technology. A
positive screening test is confinned by GCIMS
(Gos ChromatographylMass Spectrometry).
The sweat patch can have 3-possible bad
reactions: (I) a mechanical reaction such as a bandaid rash; (2) an allergic reaction which the
manufacturer says are undocumented and; and (3)
bums causing intenniuent itching, rashes or
blisters. PannChem says the bums are cause by the
cleaning of the area with alcohol and if 60 to 90
seconds drying time is not allowed before the patch
is applied, burning can be the result. PhannChem
has not admitted that people have reported more
serious reactions such os severe rashes and
putrmess to severe headaches.
The sweat patch is currently only
approved by the Food and Drug Administration
(FDA) to test for three drugs: (I) cocain; (2)
opiates (including heroin) and; (3) amphetamines

Test Result Arguments
When a testing lab or an outside
laboratory like Phann-Chem tests a batch of
samples, it sets the urine samples in a large
plate, each holding 200 urine samples. A
robotic ann, then moves to each sample,
withdrawing a couple drops by sucking tlle urine
into a tube, and separating the sample with an
air bubble 200 specimens at a time, in a row
through the same tube.
An argument not yet used about
possible cross contamination is: ( 1) if an
extremely strong sample prior to mine
(containing above average amounts of drug
residue) was positive. did any of the samples, for
example up to ten (10) samples after the
extremely strong sample, also test positive for
illegal drugs~ (2) could or is the proximate cause
of the positive drug test after the extremely
strong sample be caused by "bleed over or
residual cross contamination" of the samples
flowing through the same tube. This could be a
viable court argument to pose to an expert.
YourFifth Amendment rights
nre not violated when a specimen is used
against you in a prison disciplinary hearing. The
Fifth Amendment also does not bar prison
officials from using a prisoner's refusal to
provide a urine sample against him. But, a
prisoner cannot be lnfrac:ted and lose Good
Conduct Time, or Good TIme If a tbey
cannot produce a urine sample. 11I !fyou are
nervous about the test that you may test dirty,
[for example if tl.e guards are known for
tampering witlt specimens] you caJUlot lose
good time by just taking a refusal to piss shot
and argue that at the hearing. The Fifth
Amendment only protects a person from being
compelled to testitY against himself, or from
otherwise providing evidence of a testimonial
nalure l69•

168

Kingsley v Bureau ofPrisons. 937 F

2d 26 (2nd Cir 1991).
169

Sclr",erber v California, 384 US

757,760-61 (1960).

34

How to WIN Prison Disciplinll!1' Hearings

The coW1 in SIonlls l70, have dermed
"whether taking of a wine sample was more
'offensive and degrading' than a visual body-cavity
searches in Bell v WolfISh, 441 US 520 (1979), and
thus would require Fourth Amendment prolection.
The coW1 found that winalysis was not entitled to
a higher standard of scrutiny than body-cavity
searches, and prison officials were allowed to
obtain wine samples without probable cause or
reasonable suspicion, as long as the requests where
reasonable and not overly burdensome."
Drug test results are often argued as to
their accuracy, and if they are enough evidence for
a rmding of guilt. The relevant questions are:
(I)
whether drug test results are
sufficiently reliable to constitute some
evidence ofdrug usage; and .
whether the particular testing
(2)
scheme employed in the particular case
was itself sufficient to meet the standard
of proof required to be used by the
disciplinary committee to solely base its
fmdings.
Chain of Custody

The encompassing issues and procedures
that define proper chain of custody are : (I) the
collection, handling. sLorage, testing and disposal of
a wine specimen in a manner that ensures that the
specimen was correctly matched to the person it
was acquired from, and who was required to
provide it, and it was not tampered with or
substituted in any way, and (2) the documentation
that these procedures have been carried OUt. 171
When a prisoner ( I ) is require by policy,
statute or some "legal grounds" to provide a wine
specimen to (2) an approved prison staffmember,
and (3) the approved staff member has the proper
instruction and training to perform such gathering
ofurine samples, (4) and the approved trained staff
member has documented the custody and safe
keeping of tile wine sample, and stored it properly
for transportaL!0n to a testing facility, and (5) can
show the sample was not tampered with by its
storage and handling procedures, and (6) all seals,
locks or other securing devices were in tact. (7) the
sample will found to have been handled properly.

Evidence In Urinalysis Drug Teats

Prisoners should remain aware that a
new test procedure, not given rigorous coW1
attacks by prisoners where they havc lost or
created new law, could provide an easy win in
coW1 for a prisoner with some research. The
EMIT test is old and tested in spite of its high
error rate. Many courts required some kind of
confirmatory test sueh as the GCIMS or even a
second EMIT test. According to Corree/iollS
Today, [a pig magazine] April 1995, Legal
Traps Remain for the Unwary; Cases based on
procedural issues usually did not threaten tile
drug testing program, but challenges to tile test
reliability did. This could be your area of
litigation focus.
The 2nd,'4th, 6th and 8th circuit courts
required the usc of at least the double EMIT test
result for a rmding of guilt in a prison
disciplinary hearing. m The 8th and 9th circuits
have held only one positive test is necessary for
a finding of guilt. 17J Generally Perallzo and
Spence approve confirming the EMIT test with
another confirmation, usually a different testing
method.
There is little established litigation
challenging wine testing in a half way house,
parole or probation revocation siluations.
However, a considerable amOWll of case law
exists, using the EMIT test to send you back to
prison. and almost no IIitigation arguing the
EMIT test as adequate. 174
Most litigation comes from tile use of
tile EMITI75 test. This test was designed to
detect drug use, and tile manufacturer
tIlemselves admit will indicate a 5%+/- margin
oferror which is often adequate for a finding of

172 Peranzo v Coughlill, 850 F2d 125
(2nd Cir 1988); Spence v Farrier, 807 F2d
753 (8th Cir 1986); Higgs v Bland, 888 F2d
443 (6th eir 1989); and Thompsoll v Hall.
883 F2d 70 (4th Cir 1989).
173

In ReJoh,lSlon, 745P2d864

(Wash., 1987); Harrison v Dohm, 911 F2d 37

(8th Cir 1990).

170

Slol7ns v Coughlill, 600 F Supp 1214
(S.D.N. Y. 1984).

174 Siale v Jol"lSon, 527 A2d 250 (Conn
App 1987); Adkins v Martin, 599 F Supp
1510, 1513 (WO Okla 1988); Smith v Slale,
298 So2d 482 (Ga 1983).

lVykoffvResig, 613 F.Supp 1504, at
1513 (D.C. Ind. 1985).

17.5
Enzyme Multiplied Immunoassay
Technique (EMIT).

171

Chapter 5 - EVIDENCE

"some" evidence 176• In Koellig177, the courts have
maintained that a prisoner docs not have the right to
challenge the test results with a more accurate
method, such as using the GCIMS,llI even at your
own expense. This issue could be argued in other
courts, asking the court to be more specific in due
process requirements.
Legal Argumenu to Drug Test Raulu

Prisons and their defender attorneys can
better prepare for a big class action lawsuil It is
the little well prepared lawsuit that bites them in
the butl
Both have potentially serious
consequences in overturning the use of the EMIT
test as its only testing method. The new and untried
testing methods are prime targets for possible
litigation, well reasoned.
In a parole revocation hearing in Texas,
the defendant claimed he had inhaled cocaine
passively from his girlfriends smoke. The
probation officcr did not have an available expert
witness and the probation officer did his best to get
a parole revocation. The parole officer said, .. the
sample was tested using a 300 nanogram cut-off
level for identitYing purposes to identitY a positive
tesl" The judge, remembering testimony from
other unidentified cases, "showed a 300 nanogram
cut-off level as too high to detect a passive
inhalation positive." As a result of this erroneous
basis, thejudge revoked the probation rejecting the
"passive inhalation defense." On appeal the
revocation was reversed, not because the judge and
probation oJIiccr were wrong, but because the basis
for their decision
and theory was wrong. The U.S. v Coul11leyl19 ease
is worth reading.
A prison that wants to stay out of court
will provide or request a confinnatory test on a
single positive EMIT test, using preferably the
GCIMS method. The new slide test system is an
area ofprison lawyers concern being introduced to
prisons as a testing method. Even though the
judges reasoning was wrong, two cnses discuss this

35

procedure. 11lI In both Rallsom v Davies and
Kimball vScolts cases, the judged reasoned that
"because the tests before him were a fonn of
immunoassay testing method, he could rely on
previous judicial decisions involving the EMIT
test." The judges reasoning is wrong because,
even though both testing methods (the slide test
and EMIT test) are a fonn of inununoassays,
there are significant fundamental differences
between the two technologies that make
comparing them wrong. The prisons caMot use
legal cnses that approve the use of an
unconfirmed EMIT test because they do not
provide legal precedent to support other
technologies like the slide tesl
In a legal case presented by a pro se
prisoner, the action will probably not meet the
same standard of scientific review, factual
analysis, scientific or legal issues as a case
represented by a lawyer. When asking for
appointed counsel if going to court, point out
your lack of access to scientific and lab testing
material for your case to support your claim.
This then would be an added appealable issue,
ifdenied. If a legal challenge does not exist to a
particular urine testing method or procedure, the
courts door is open for a challenge.
In litigation, prison staff may rely on
Wooo vSlale ll1 to defend their position on only
one EMIT test as being sufficient to meet due
process in the application of punishment of
"some evidence." Many other cnses exist to
support the Works case. You can argue that a
second positive EMIT or a more accurate test
method be required before the imposition of
punislunent wilen thepotenJiJllfor loss ofgood
time exists and one test is not an adequate basis
In Holllls v
for disciplinary actionIn.
Coughlilf,ln the courts required that two (2)
positive EMIT tests results sufficientJy
supported a delennination of guilt in a
disciplinary hearing, even though the literature
concerning the EMIT test had been revised by
the manufacturer to advise use of more specific

Ralf&om v Davies. 816 F Supp 68/
(D Kan /993): and KilllballvScollS. /993
WL 455266 (D Kalf /993).
180

176

Koellig v Vallllelli, 971 F2d 422 (9th
Cir 1992).
Koe"ig v Vall"elli, 971 F2d 422 (9th
Cir 1992).
178
Gas Liquid Chromatography-Mass
Spectrometer Test.
177

179

/993).

U.S. v Counlley. 979 F2d 45 (511r Cir

181
Work& v Slale, 575 So 2d 622 (Ala
Crim App 1991).
182
Bourgeio& v Murphy, 809 P2d 472
(Idaho 1991) (dicta) (reviewing the authority
on each side).
183
Holllls v Coughlin, 583 NYS2d 703
(App Div 1992).

36

How to WIN Prison Disciplinary Hearings

alternative chemical methods to obtain a conflll11ed
result.
To fw1herthe argwnenl, a second positive
test result on the same specimen was considered
"substantial evidence," in McGill v Coughlill l14
during his disciplinary hearing. In cases where the
court feels a single (1) EMIT test is NOT enough
basis for a fmding of guilt during a disciplinary
hearing. rely on the lacking of "some evidence."
Check your local court decisions to discover if you
have adequate grounds on this single EMIT test
alone. Wisconsin allows you to request a
confumatory test, at your expense.
Let's argue "theory" for a moment. /Fa
single EMIT test is done. without a "conflll11atory
test" or test to confirm the results of the frrst test.
look at the "probability ofdrug use." Asswning the
EMIT test is 95 % correct, (actually, 70% to 95%
accurate). you test positive in a single test. The
element of"probable guilt could be argued to e.xist
by the institution in court" and is based on "the test
result is probabitive and has sufficient acceptance
and scientific basis to certainly constitute an
element of evidence." You need to argue, saying,
"Ibis single test in and of itselfis NOT ofsufficient
weight to fulfill the 'standard of proof which due
process requires in disciplinary hearings." Of
course. with this argument you are walking on thin
ice. but be careful in your argument and research
the issues in detail. Some courts have held just one
EMIT test is sufficient for a fmding of guilt using
the "some evidence" requirement.
Many states just say "why require
evidence in the record to throw the person in
solitary confinementllS." Fortunately. the courts
have asserted themselves through good prisoner
litigation and held that "rumor or personal.
unrelated knowledge about a particular prisoner. is
not enough and must be based on evidence in the
record. "II' Wisconsin. was the first state to even

require a minimal level of investigation before a
disciplinary hearing committee can make a
"factual determination" enough to meet the
requirements as described in the minimwn due
process requirements in IJ'olff/l1.
In Pe,.QllZO v Coughlin..•• the court
refused to grant injunctive relief against the use
of urinalysis test results in prison disciplinary
hearings. The reason being: given the "reduced
liberty interest of prisoners. the scientific
reliability of evidence in disciplinary hearings
does not have to rise to the level that would be
required in criminal proceedings." This theory
continues by a prisoner's refusal to submit to an
order to take a drug test. however. may be a
disciplinary violation. lit
In the Higgs l90 case. it was held by the
court that "the reliability of the EMIT test was
sufficient to satisfY the due process standards
when used as the basis for 'discipline' for drug
use." It was also decided that the lab persons'
testimony was not required in the disciplinary
hearing since the lab person was not the accuser
or an adverse witness and had no knowledge of
facts surrounding the alleged abuse. I" The
prisoner should have expanded on lab
procedures theory. Generally. in a lawsuit
situation. the defense is not able to fight single
drug test cases as well as a class action case
because of the time and resources allowed class
cases.
When a single EMIT test indicated that
a prisoner had used marijuana. a Thin Layer
Chromatography (TLC) test confirming this

(...continued)
v Lefevre. 127 Misc 2d 910. 487 NYS2d 925

(SCt 1985)~ in re Lamb. 34 Ohio App 2d 85.
296 NE2d 280 (1973).
187

184

McGill v Cough/ill. 583 NYS2d 702
(App Div 199~). and in Sharpe v Cough/ill. 177
AD2d 774. 576 NYS2d 62 (1991) the courts
held that two (2) positive EMIT tests were
"substantial evidence" that the prisoners had
violated the institutions drug rules.
Resource Ctr on Correctional Law &
Legal Services. Survey ofPrison Disciplinary
Practices and Procedures. 24 (1974).
18S

186

Salltu v Wainwright, 357 F Supp 1062

(MD Fla). vacated. 491 F2d417 (5th Cir 1973),

cerl denied, 416 US 992 (l974)~ Landman v
Royster. 333 F Supp 621 (ED Va 1971)~ Massop

(continued...)

State ex rei Meeks v Gaglio". 95 Wis
2d 115.289 NW2d 357 (1980) The Wolff
case is discussed in more detail in Chapter 2.

Pe,.atlzo v Cough/ill, 608 F Supp
1504 (SONY 1985). see also. Vasquesz v
Cough/ill. 118 AD2d 897. 499 NYS2d 461
(1986).
188

189

Tucke,. v Dickey. 613 F Supp 1124

(WD Wis 1985).
190

Higgs v Bland. 888 F2d 443 (6th Cir

1989).
191

Wilsoll v Higgs. 940 F2d 664 (6th
Cir 1991 ~ PerallZo v Coughlin. 850 F2d 125
(2d Cir 1988)~ Higgs v Bland, 888 F2d 443
(6th Cir 1989).

37

Chapter 5 - EVIDENCE

result fonned sufficient basis to support
disciplinary sanctions against the prisoner and no
GCIMS test was needed, even at the prisoners'
e.'q)Cnse because of the penologicial interest of the
prison and a possible ripple effect among
prisoners. 19J Another court disagreed. and stated
that the prison should have been required to show
that they had a legitimate penological inlerest in
denying the requesl of the prisoner, found guilty for
ingesting marijuana primarily on the basis of two
(2) EMIT tesls, to pay at his own expense for a
GC-MS test which is 100% accurate rather than
95-98% accurate since that was the only way thc
prisoner could refute the EMIT lest resullsl9J , but
overruled in Koenig.
In Wykoffv Resit"', the court decided that
before resulls ofa prisoner's urine sample could be
introduced in a disciplinary proceeding, due
process required that the prison establish an
adequate chain of custody in Elkin v Fauver. lts
But in Byerly v Asllley,l96 the court held that a
prisoners due process righls have been violated
where he was punished for unauthorized use of
drugs and alcohol, but where there was no proof of
an adequate chain of custody of a urine sample
taken from him and tested in the laboratory. The
laboratory which tested the sample had not signed
it or indicated whether the package and specimen
seals were intact when received, and no one from
the laboratory had filled out a custody form to
indicate who received the sample or who had
handled it while it was being tested. The court
specifically noted that a prisoner facing disciplinary
punishment is not entitled to the same safeguards as
a person facing criminal prosecution or parole
revocation but, stated iliat fundamental fairness
requires that evidence against a prisoner be
reliable. While fmding no constitutional violation
in this case, the court tried to avoid future litigation,
outlined the appropriate procedures to be followed
in future cases:
I. The urine sample should be sealed in
the presence of the prisoner from whom it
is taken.

2. A wriUen record of the location and
transportation of the sample always
should be kept.
3. The sample, while in possession of
correction officials, should be stored in
a locked refrigerator with very limited
access.
4. The prisoner should be given a
duplicate copy of the laboratory test
resulls.
In Higgs v Wilson, and~ Nasir v
Thielke,.", the court held holding that a prisoner
was entitled to get a copy of an officer's urine
report taken on the day of the incident). For a
survey of New York decisions which have
considered this issue in the context ofurinalysis
testing. see Batista v Kuhlmann,ln, results of
urinalysis test inadmissible, absent laying of
proper foundation. In Jennings v Coughlin,l99
the foundation for introduction of
lest for marijuana required before resulls of test
can be admitted. In Newman v Couglrlill,*
while proper foundation must be laid for
introduction of urinalysis test, prisoner need not
be provided with copies of the test prior to the
hearing. In Pella v Adams,201 while urinalysis
test constitutes strong evidence of drug use,
reliability and accuracy or corroborative
evidence must also be critically examined.
Positive Drug Test Results
If you know you are guilty, look for
areas to cut your losses. Pharm-Chem, the drug

lab your urine tests go to in federal inslitutions,
has a report showing their program flaws. Some
State prisons have their own staff perform the

drug screening tesls and analysis. Check their
qualifications, chain of custody and secure
storage.
Pharm-Chem also has scnsitivity
levels so low, (down to 50ns or lower, with
197

Higgs v Wilson, 616 F Supp 226

(WD Ky 1985), vacated, 793 F2d 1291 (6th
192

Cir 1986); Nash v Thielke, 743 F Supp 1301
(ED Wis 1990).

193

Pella v Adams, 702 F Supp 244 (D Nev
1988), sec also, 723 F Supp 1394.

198
Batista v Kulrlmam" 90 AD2d
934, 457 NYS2d 931 (1982).

194
Wykoff v Resig, 613 F Supp 1504 (NO
Ind 1985).

199
Je""ings v Coughlin, 99 AD2d
635,472 NYS2d 195 (1984).

19S

Elkin v Fauver, 969 F2d 48 (3rd Cir),
celt denied, 113 S Ct 473 (1992).

200
Newman v Coughlill, 110 AD2d
981,488 NYS2d 273 (1985).

196 Byerly v Ashley, 825 SW2d 286 (Ky
Ct App 1991), em denied, 113 S Ct364 (1992)

201
Pella v Adams, 638 F Supp 94 (D
Nev 1986).

Koenig v Vannelli, 971 F2d 422 (9th
Cir 1992).

38

How to WIN Prison Disciplinary Hearings

general cut off levels above 300ns as a positive
test) don't expect to get away with ANYTHING!
Keep good medical record.. and medicine labels.
Sometimes the institution might forget you were
issued medication, since records do get lost. Once
you clear up the incident report problem, probably
you will have already completed your DIS time, and
obtained whatever sanction was given. A single
smoke ofmarijuana will cause a positive test for up
to 30 days depending on your metabolism.
!fyou tested positive for THe Metabolite
(Cannabinoid or Marijuana), and the institution
intends on punishing you, a "confImlatOIY test" is
reqUired on the urine sample. Often, the institution
fails to do this, even though it is offered by the lab
when they deliver the preliminary test results. The
lab gives the institution normally 24 hours to place
the request. before they dispose of the specimen.
The "Confinnatory Test" is directly
related to your Procedural Due Process rights as
required under the Fifth Amendment [5th Amend.
- for federal prisoners, and 14th Amend. for state
prisoners] of the Constitution in Solo v Lord 201
Here, the courts ruled that "without due process of
law ... without adequate procedures," there is no
case.
In another casc, the statement that
"Disciplinary confinement clearly implicates a
liberty interest requiring due process" - meaning
the confinnatory test MUST be don~.
When the EMIT:IOl test is performed, and
a confirmatory test is NOT, some courts have
decided that your "Due Process" rights to proper
procedure, have been violated. If the GCIMSIO$ is
used, mosllabs still offer the "confirmatory test"
which costs the institution a litlle more money, but
a first THC positive test could be in error with only
a single EMIT test method2ll6•
202

Solo v. Lord, 693 F.Supp 8 (S.D.N. Y

1988).
McCa"" v. Cough/ill, 698 F.2d 112,
121 (2d Cir.1983);. see also Frazier v. Cough'ill,
850 F.2d 129,-130 (2d Cir.1988).
204
Enzyme Multiplied Immunoassay
Technique (EMIT).

Gas Chromatography I Mass
Spectrometry test method, (GCIMS).
205

Pel1l11Z0 v. Cough'ill, 608 F.Supp 1504,
1512-15 & n. 16 (S.D.N.Y. 1985) the Courts
have decided that a single EMIT test has a 25%
error rate for a single test. The RIA and the
GCIMS tests are highly accurate but more
expensive to the institution.

The chain of custody of the sealed
specimen is also important. Watch these things.
Most of all, make sure the institution did not
blow the time limit to bring action against you. lOl
An example below of an Incident Report
Wrillen Defense paragraph, in defense of a
positive THC test where the confIml8tory test
was not done: "No follow-up test on the sample
was completed to confIml a positive THC
Metabolite (Cannabinoid or Marijuana) test.
Pharm-Chem, (or whatever is the name of the
actual testing lab), offered the confinnation test.
but it was not requested by this institution. In
this particular chain ofevidence; the second test
(which is a confImlatory test) is required if
sanctions are intended to be applied, bUI Ihis
was 1101 dOlle. In a prisoner's case SOlo v. Lord,
693 F.Supp 8,693 F Supp 8 (S.D.N.Y. 1988),
the second test is required to withstand the
Procedural Due Process rights allowed me by
the United States Constitution."
Save any labels from any medication
you might be taking before you run into a
problem. This is just in case you might need to
prove later that it was prescribed. Codeine,
Morphine, and the Opiates are tough to win, but
they are winnable ifyou have a good defense. If
you say, "I take cold medicine," it will only get
you laughed at. and DIS time. Eating anything
with Poppy Seeds will cause a positive
Morphine test. Don't eat poppy seeds, even
though they are served at some institutions.
Proving you ate poppy seed rolls, while in the
hole, is difficult! The "overdose" theory by
some BOP Staff is not true and is easily proven
wrong.
Time periods, in which drugs can stay
detectable in your urine after the time when the
drug was used, will vary depending on the drug
and the condition of your body and liver. The
following time periods are therefore only
estimates, but they also represent the minimum
waiting periods between samples upon which
disciplinary actions for that drug may be
basecPOI.
Detection Periods for Selected Drugs

3 days

Amphetamines.
Methamphetamine
Cocaine·
Cocaine Metabolite

207

See Appendix A, Time Limits (Table

206

2).
208

See: BOP Program Statement
6060.05 for further information.

39

Chapter 5 - EVIDENCE

5 days

Methadone
Methadone Metabolite

6 days

Morphine
Codeine
Opiates (includes Morphine)·
Meperidine (Oemoral)
Pentazocine (Talwin)
Propoxyphene (D8IVon)

II days Barbiturates
Phencyclidine (PCP)·
14 days Phenobarbital

30 days THC (Marijuana)· (Canabinoids) (61
different components)

• = The only drugs, authorized by the U.S.
Government for labs to test for under random
conditions.
Providing Urine Samples
It could it be worse than you think when
it is your twn for a urine test if you test positive for
illegal drugs'F" Staffofthe same sex,210 must direct
the test, and observe the donation of urine into the
bottle. Don't offer to piss in the officer's coffee
cup even though they deserve it. To assist you,
staff must offer you 8 ounces of water at the
beginning of the two-hour lime period. You are
presumed unwilling to provide the urine sample if
it is not done within the allotted time. But, you may
rebutlhis dwing the disciplinlll)' process. You may
be given more than 8 ounces of water to drink
during the two-hour period If you request it, as
allowed by the BOP Program Statement # 6060.05
and many State policies regarding Urine Testing
Procedures.
lfyou are unable to supply a urine sample
after the two hOW"S,211 staff should consider, but
usually don't, the following possibilities, which you
may use in your defense. You may have one of the
following conditions:
209

Program Statement # 6060.05 (Urine
Surveillance to Detect and Deter Illegal Drug
Use)
Even though you might like the opposite
sex to observe, which they are usually butt ugly
and prefer their own sex.

210

21 t

Refusal to submit to an order to lake a
drug test may constitute a disciplinlll)' violation.
Tucker v Dickey, 613 F Supp 1124 (WO Wis
1985).

a) You may be dehydrated (water
level of water in yoW" body is low)
b) You may have a "shy" bladder (you
can't piss with someone watching).
Ask the P.A. for a medical restriction
for a shy bladder.
c) You may have a medical or
psychological problem (get this
documented in your medical records).
You may be placed in a "dry room", if
you are still unable to give them a urine test.
They will give you a bottle, and tell you to call
them when you are able to fill it. This dry room
is usually segregation.
The court has said that, although
random urinalysis testing for drugs implicates
prisoners' Fourth Amendment rights. it was
permissible IF conducted in a reasonable
manner. 212
Evidence In Alcohol Testing
A reading of .05 or higher will be
considered a positive test, IF, after 15 minutes,
another test MUST be given and a test result
again ofhigher than .0521J •
The Program Statement also says that
the Aloo-Sensor must be calibrated at least once
a month, and documented in the log. A positive
alcohol test, could be wrong. Consider asking
for a verified calibration or other evidence it is
calibrated and operated fairly ifyou have reason
to suspect the machine is not being operated
properly.
You will test positive for alcohol if you
have:
a) Just drunk cough syrup within the
past 2 to 5 minutes, but will only last
for a few minutes.
b) Only eaten salads and/or fruits all
day.
e) Stomach problems (which must be
documented by a doctor or P.A.)
If any of these are your defense,
attempt to make note of any witnesses or
evidence. and present this at your hearing.
When testing for alcohol, through
using the breath-test. pay attention to what you
have been eating. A lot offiuits and salads will
cause an alcohol blow test to be positive, ifthat
212

Stonlls v Cough/ill, 600 F Supp
1214 (SONY 1984).

Program Statement #6590.05
(Alcohol Testing).

213

How to WIN Prison Disciplinarv Hcarlngs

40

is all that was eaten that day. If you just fmished
taking cough syrup, you could also blow a high
alcohol positive test. The alcohol only lasts about
2 - 5 minutes. at most, after taking the cough syrup.
Be ready to show your bottle of cough syrup if
caught at this point.
Evidence In Polygraph Tests

Please guys. and some gals, I don't want
to get into this issue in detail. It is beyond the
scope ofthis book. In short, polygraph tests don't
hold up in court, and can be used against you in
classification and disciplinllJ}' hearings as "some
evidence".J14 Need I say more: just don't take a
polygraph, regardless of your guilt or innocence.
Polygraphs are too often wrong, and if you are
trying to support your innocence by a polygraph
you could end up getting screwed.
The equipment, the operator and his
experience and training are very important.
regardless if the equipment is CWTent stale-of-theart A prisoner may lose his right to keep a
polygraph test out of a hearing, ifhe docsn't object
to its use timely and on the record. In some cases,
prisons may drop the charges against a prisoner for
passing a polYBJllph.ill The technology is changing
and getting belter. The polygraph machine
operator is usually prison staffwho are not trained
properly, or experienced. or considered "neutral"
parties to any result. Polygraphs are investigative
interrogation tools designed to elicit confessions,
regardless of weather you are truly guilt or
innocent.
Hearsay Evidence

Ifsupported by "some" evidence, hearsay
evidence will most likely be allowed, and a
pllsoner may not object on hearsay, solely for that
one reason216• Ofcourse, I assume you are familiar
with Federal Civil Judicial Procedure & Rules
(Fed. R Civ. P.), Rule 803: ..... are not excluded by

the hearsay rule, even though the declarant is
avuilable as a wilness." Prisoners may not be
given the right to e.xclude hcarsaf", and hearsay
is admissible in discipliDllJ}' hearingsJII•
Hearsay testimony alone is not enough
by itself to support a finding of guilt1l9 • Courts
generally allow hearsay evidence to be
admissible at disciplinllJ}' hearings, it is
insufficient, without more, to support a fmding
of guiltuo. In some instances, courts have
required an additional element to hearsay
evidence in that it may be admitted if it is
sufficiently relevant and probative, ~aying that it
may constitute substantial evidence to support a
determination thata prisoner is guilty.ul
Hearing officers, must consider hearsay
testimony and its reliability in the context of a
ruling on whether witnesses have given
sufficient reasons for refusing to testify at
disciplinllJ}' hearings. In Barnes v LeFevreW,
no basis exists for denying the prisoner's right to
calla person os a wilness, even if the wilnesses
refuses, without a good reason submitted to the
hearing officer. Vague hearsay statements made
by such wilnesses is not sufficient to relieve the
hearing officer of his duty to interview- the
wilness and explore the reasons for the
wilnesses refusing to testifym.

217

Rudd v Sargent, 866 F2d 260 (8th
Cir 1989).

Wolfe v Carlso", 582 F Supp 977
(SDNY 1984).

218

219
Alvardo v Lefevre, II AD2d 475,
488 NYS2d 856 (1985); see also, Ex parte
Floyd. 457 So 2d 961 (Ala I984)(violation of
due process for a fmding ofguilt based on
"supposition based on supposition, stemming
from hearsay.")

Parker v State, 597 So 2d 753 (Ala
Crim App 1992), see also, Howard v
Wilkerson, 768 F Supp 1002 (SDNY 1991).

214

220

215

221
Foster v Coughli", 156 AD2d 806,
549 NYS2d 223 (1989), appeal grallled, 75
NY2d 709,555 NE2d 619,556 NYS2d 247,
affd, 76 NY2d 964, 565 NE2d 477. 563
NYS2d 728 (1990).

Loville v Wriglrt, 423 F Supp 357 (D
Utah 1976)~ Vanlsoll v Satrall, 368 NW2d 533
(ND 1985); but in Bradley v State, 473 NW 2d
224 (Iowa Ct App 1991), the Iowa court held that
polygraph exam evidence should not be used as
evidence in a prison disciplinllJ}' action unless
both parties agree to its use.
Shultz v SalTOlI, 368 NW2d 531 (ND

1985).
216

Wolffv McDOImell, 418 US 539
(1974)(discussion of"hearsay wilness
confrontation" and eross-examination.) .

222

Bames v leFevre, 69 NY2d 649,
503 NE2d 1022, 5II NYS2d 591 (1986).
Hylto" v Lord. 148 AD2d 453, 538
NYS2d 951 (1989).

22J

Chapter 5 - EVIDENCE

41

A prisoner has the right to call witnesses
and present evidence at a disciplinllJY hearing,
unless granting the request would be unduly
hllZllJ'dous to the institutional safety or correctional
goals. The burden of proving the rationality of the
denial is upon the prison officialsn4• Prisoners need
to carefully watch this area where prisons' often
abuse their discretionllJY powers to deny evidencc
and witnesses. In BrowII-EI v De/OIIJ , the prisoner
challenged the disciplinllJY proceeding. The courts
held that he had the right to present evidence, IF by
doing so, he does not threaten the orderly operation
and security of the
institution.216 Prison staff who you feel have abused
their discretion by denying you witnesses or the
opportunity to present evidence in your defense,
need to be questioned about the denial in detail.
You need lo probe and ask specifically how the
"threat to the inslitution" for their basis for denying
your evidcntillJY presentation by substantiated
history, or real issues.
A disciplinllJY hearing has violated your
due process rights by not providing you a
meaningful opportunity to present a defense. In
Malik v Ta'me,JJ', the prisoner was not allowed to
attend the hearing, lislen to testimony, call
witnesses, produce documenlllJY evidence, or
testify on his own behalf, and the court said it was
in violation of his due process rights. The key part
of your defense rights should be your right to
present a IIIeallillgful defense. This is often an
abused discrelionaty power of prison staff.

Ac(tBdoes notapply to prisondisciplinary hearings
and does not need to confonn to the evidcnti8l)'
requirements. :uo But, the Bureau of Prisons
(BOP) is an agency within the meaning of the
Federal Administrative Procedures Acl2J' , at
least in its rule making capacity. So lo further
explain prison disciplinllJY hearings relative to
"evidenti8JY rules", they are classified as
"flexible, governed by neither the evidentillJY
rules of a civil trial, a criminal trial, nor an
administrative hearing. The only limitations
seem to be those imposed by (1) due process,
(2) a statute, or (3) administrative regulations.
In Wightman v Superintelldent. 2J1
"regulation" required the disciplinllJY board lo
admit and accord probative value only lo
evidence on whieh "reasonable persons
accustomed to rely in the conduct of serious
affairs."
Characler witnesses can also be
limiled and denied along with jury trials and
sworn testimony. Sworn testimony is not
required because of the "weighl of some
evidence" rule.
Ifa prison is going to use "confidential
evidence," the hearing officer musllell you why
il is confidential and ifconfidential infonnation
is considered against you2J!.
Evidence seized in a violation ofwhat
a prisoner would coli his Fourth Amendment
righl is admissible since no Fourth Amendmenl
Rights exist in prison. The "exclusion8l)' rule"
hos had lillie effecl because the supreme court
does not want lo extend the exclusionary rule lo
proceedings other than criminal trials,2J4 and as

Admissible Evidence

229

Right to Present Evidence

Since disciplinllJY hearings are neither
eivil or criminal, the fonnal rules of evidence do
not applyn'. The state's Administrative Procedure

for example, Flo Stal Ann §120.57
(Wesl 1982).
230
Clardy v Levi. 545 F2d 1241 (9th
Cir 1976)~ Hargrove v Dept ojCOn-eCtiOIU,
601 So 2d 623 (Flo Dist Ct App 1992).
231

224

Killgsley v Bureau ofPrisolls, 937 F2d
26 (2d Cir 1991).

22S

BrowII-EI v Delo, 969 F2d 644 (8th Cir

1992).
226

Prall v Rowlalld, 770 F Supp 1399 (ND
Cal 1991); Barth%mew v Reed, 477 F Supp
223,227 (D Or 1979), modified, 665 F2d 915
(9th Cir 1982).
227
Ma/ikv Tallller, 697 F Supp 1294
(SONY 1988).

Flythe v Davis, 407 F Supp 137 (ED
Va 1976); Killcaide v Coughlill, 86 AD2d 893,
447 NYS2d 521 (1982).
228

5 U.S.C. § 551 et seq.

232

Wightman v Superilltendellt,
Massachusetts Con-ectiollaillut., 19 Mass
App Ct 442, 475 NE2d 85 (1985).
233
See for a review of the issue in detail,
Boyde v Cough/ii" 105 AD2d 532, 481
NYS2d 769 (1984) (the court allowed the
confidential infonnation as long as they were
submilled to the hearing officer for review in
consideration of guilt.)

Stolle v Powell. 428 US 465
(1976)(habeas corpus bearing)~ U.S. v
Calandra, 414 US 338 (l974)(grnndjwy
234

(continued...)

42

How to WIN Prison Disciplinarv Hearings

indicated previously, a disciplinary hearing is not
considered a criminal trial. Weak, but arguable, is
because the prime PUl])Ose of the exclusionary rule
is to deter governmental violations ofconstitutional
rights, and because prison authorities sometimes
have little interest in criminally prosecuting an
prisoner who has breached institutional rules, the
extension of the exclusionary rule to disciplinary
hearings is needed to discourage infringement ofa
prisoner's narrow and weak Forth Amendment
rights, to the extent that they do exist.
If prison staff are altempting to admit
irrelevant, prejudicial, immaterial, or if other
inappropriate evidence bas been introduced at your
disciplinary hearing, you are left with two basic
approaches: (I st) you may choose to contend that
the introduction of the challenged evidence
rendered the proceeding so fundamentally unfair as
to violate due processu ,. (2nd) you may claim that,
discoWlting the improperly introduced evidence,
there was not sufficient substantial evidence to
support the disciplinary bearings fmdingsu6. In a
rather unusual court fmding in Morrison v
Lefevre231" it was found that prison statT had
planted evidence against ajailhouse lawyer in order
to provide a basis for disciplining him. The court
said, it bad "clearly violated his due process
rights."
A prisoner by the name of Mclntoslr1n ,
was accused ofwriling a note he was infracted for,
but was not allowed to view it during a disciplinary
bearing. He sued, and tbe court said this violated
his due process rights. In another interesting case,
the court said an "unsworn statement from a non
expert witness" that Wightman m • possessed "angel
dust" was not sufficient to support the disciplinary
board's fmding of guilt. Some courts have held

(...continued)
proceeding).
23S

Lathrop v Brewer, 340 F Supp 873 (SO
Iowa 1972).
SandS v Wainwright, 357 F Supp 1062
(MD Fla), vacated, 491 F 2d417 (5th Cir 1973),
eert denied. 416 US 992 (1914); Cambell v
Marquette Prison Warden, 119 Mich App 317,
326 NW2d 516 (1982).
236

MOITison v Lefevre, 592 F Supp 1052
(SONY 1984).

237
238

Mcintosh v Carter, 578 F Supp 96
(WO Ky 1983).
239

Wightman v Superilltendellt,
MassaclJusetts Con-ectiollalillstitution, 19 Mass
App 442, 475 NE 2d 85 (1985).

that without some sort of "ex-pert and sworn
stalcment"" regarding if the alleged drugs where
actually drugs when Ev~, was accused of
possessing marijuana he could not be found
guilty in a disciplinary hearing. The court
invalidated Evalls disciplinary conviction.

Bunlen orproor- "Intent" To Break A Rule
Evidence sucb as "your intention" of
breaking a rule is relevant to a hearing and your
defense. Unfortunately, I was not able to fmd
very much case law to directly argue the prison
"intentions" argument. But, the "intentions"
argwnent also relates to the Chapter discussing
the details of the "Standard of Proof
Requirements".
In arguing that you never "intended to
break a rule", careful examination must take
place to the possibility of winning on these
grounds. Intention is defined as:141
Detennination to act in a certain way
or to do a certain thing. Meaning~ will~
purpose; design.
"Intention" when used with
reference to the· filing of an
administrative complaint, means the
sense of the words contained therein.
When used with the reference to civil
and criminal responsibility [as this is
the case], a person who contemplates
any result, as not likely to follow from
a deliberate act of his own, may be
said to intend that result, whether he
desires it or not.
Intent: and motive should not
be confused. Motive is what prompts
a person to act, or fail to acl Intent
refers only to the state of mind with
which the act is done or omitted.
General Intent: in criminal
law, the intent to do that which the law
prohibits. It is not necessary for the
prosecution to prove that the defendant
intended the precise bonn or the
precise result which happened.

240

Eva"s v State, 485 So 2d 402 (Ala
Crim App 1986).

241

Witters v Ullited States, 70 U.S.
App. D.C. 316. 106 F2d 837,840; Reillhard v
Lawrellce Warehouse Co., 41 Cal App2d 741,
107 P2d 50 I, 504~ State v Granl, 26 N.C App
554, 217 S.E.2d 3,5; State v Evans, 219 Kan
515,548 P2d 772, 777.

Chapter 5 - EVIDENCE
Another argument is in the Four Comers
Rulc. Undcr thc "four comcrs rulc", intcntion of
parties, especially that ofagreeing person, is to bc
considered from the action as a whole and not from
isolated parts thereof. 242
Forexmnple, ifyou are laying around in a
location that has been made off limits at a certain
time, but you were not aware of the time the area
was madc off limits, and charged with "attempted
escape". the accusation lacks "inlent", The same
with other unauthorized areas. If it just becamc
unauthorized for example: at the midnight count
and it is now 12:01 am, your argument exists that
"intcnt" is lacking and you could also dispule the
actual time of thc alleged infraction. The "somc
evidence" rule still exists at all disciplinary
hearings.
Most state prison regulations contain a
rule that some indication of"intent to break a rulc"
must exist. and when a libirty interest exists,
supported with a statute or rule, thc disciplinary
hearing officer must show a rmding of "intent". 24)
242

Davis v Andrews. Tex.Civ.App., 361
S,W.2d4l9,423.
Frielas v Auger, 837 F2d 806 (8th Cir
1988)~ Lewis v Lolle,882 F2d 1171 (7th Cir
1989).

243

43

44

How to WIN Prison Disciplinmy Hearings

6 - STANDARD OF PROOF REQUIREMENTS TO
JUSTIFY DECISION

prisoner that "some evidence" is not proper, and
the "preponderance of the evidence" standard
Disciplinary Hearing Officers (DHO)
must be used. but later was reversed on Ute
must make findings offact with regards to specific
substantive partm . The use of the "substantial
acts of misconduct. 2..
evidence test" to decide if
They cannot merely
the fmding by the hearing
find you guilty based
officer is correct is a
The standard of Superilltelldelll v. Hil',472
on political pressure
violation of due process.
US 445, 105 S.Ct. 2768 (1985) is not met in
even though that is
that
This
assumes
Oswalt because he never left or failed to
the usual procedure
"substantial evidence" is
return to the prison, one of which was
among
accepted
less than a "preponderance
required to constitute "escape" under the
prison staff.
ofevidence" which is more
Illinois Administrative Code (lAC). (Check
Prison staff
than is required for due
your local statutes); Secondly, lAC allows
rely
on
process. 247 Of course, I
for prisoners to be found guilty of
SlIperilllelldelll
v
understand prisons usually
conspiracies or attempts but not conspiracy
HiII,245 where the
usc the "not any evidence"
to make attempts.
courts decided in this
rule as their most common
Oswalt v. Godinez. 894 F. Supp. 1181 (ND IL 1995)
rather prejudiced case
practice to support their
against prisoners' that
finding of gt.ilt.
the proper standard is
"some evidenGe" for a finding of guilt. "Some"
Disciplinary Findings Must State
could be a staff member with a grudge, pointing
Evidence Relied on to Base Finding
his fmger at you. Before assuming "some" is
or Guilt
correct in your case, read on. A court sided with a
A federal district court in Illinois held
that a disciplinary committee's report fmding a
244
prisoner guilty of misconduct must stale the
DySOIl V Kocik. 689 F.2d 466 (3rd Cir.
charges
the prisoner was found guilty of and the
1982).
ProorRequirements For Findings of GulU or
Innocence

24S Superilllelldelll v Hill, 472 US 445
(1985); QUilllall V Fairman, 663 F Supp 24
(NO ILL 1987)~ Ruckert v Johnsoll, 724 F Supp
568 (NO ILL 1989); Stricklalld v Delo, 758 F
Supp 1319 (ED Mo 1991); Rogers v Oestreich.

736 F Supp 964 (ED Wis 1990).

246

Goflv Dailey, 789 F Supp 978 (SO
Iowa 1992), afld ill part, rev'd ill parI, 991
F2d 1437 (8th Cir 1993).
247

Stricklalld v Beyer, 1990 US Dist

LEXIS 2510 (DNJ 1990).

Chapter 6 - STANDARD OF PROOF REQUmEMENTS TO JUSTIFY DECISION

evidence supporting each of the charges. Alvin
Oswall, an Illinois state prisoner, filed suit under
42 U.S.C. § 1983 claiming his due process rights
were violated by prison officials after he was
found guilty of escape, damage to property and
conspiracy attempt to escape. The defendants filed
a motion to dismiss which the court granted in
part. dismissing Oswalt's claims concerning the
investigation, the time he spent in segregation
during the investigation, the hearing conunittee's
refusal to call his witnesses Md to accept his
docwnentary evidence. II1inois prisoners also have
no due process right not to be placed in
segregation pending investigation.
The cowt denied the defendants' motion
with regards to Oswalt's claim that he was not
given a written statement of the reasons for the
disciplinary action. In its summary the conunittee
said it relied on Oswalt's admissions, prison
records and the credibility of witnesses in finding
him guilty. The court noted that a reviewing court
must a1T1llJ1 a disciplinary ruling if there is "My
evidence" in the record to support the guilty
finding. See: Superintendent v. Hill, 472 US 445,
105 S.Ct. 2768 (1985). In this case that standard
was not met because Oswalt never left or failed to
retwn to the prison, one ofwhich was required to
constitute "escape" under the Illinois
Administrative Code (lAC). Secondly, lAC
allows for prisoners to be found guilty of
conspiracies or attempts but not conspiracy to
make attempts.
"While the adjustment conunittee is not
required by law to offer a detailed el\'Planation of
its reasons for finding plaintiff guilty, mere
common sense as well as the most basic rudiments
ofjustice require some accounting ofhow plaintiff
could be guilty of an offense when the evidence in
the record would seem to suggest that plaintiffdid
not meet the requirements necessmy to satisfY the
charge. While recent decisions have whiUled
down the constitutional rights enjoyed by
prisoners, due process is not yet an entirely hollow
phrase when Jlpplied to the interests of inmates
facing disciplinary proceedings. To ensure that
prison hearings do not devolve into sham
proceedings, determinations of guilt must find
support. at the vel}' least, in the laws of physical
possibility. Here there is ample reason to wonder
how plaintiffcould be guilty ofEscape (a charge
whose n:quirements it seems he did not physically
meet) or conspiracy to attempt escape (a charge
that may not exist)."
The hearing committee did not specify
whether Oswalt was being found guilty ofone or
alIlhn:e of the charges. The issue in this case was
not that the evidence did not support the

45

committees finding of guilt but whether there
was reason to support the initial charges against
Oswalt. The cowt held that on the record before
it Md the fact that the defendants bad not
rebutted Oswalt's argument, he would not grant
their motion to dismiss. The court also
appointed counsel to represent Oswalt in further
proceedings. See: Oswalt v. Godinez, 894 F.
Supp. 1181 (NO IL )995).
In explaining the conflict regarding
standards of proof, one court has at least made
the attempt. In Gor' the prisoner was good at
attacking the issues before the court. He said.
"the prison disciplinary committee violated his
due process rights by using "some evidence" as
a standard of proof in making a factual
delenninations." The defendant prison officials
resisted as usual on the ground that "some
evidence" was the standard to be applied. The
court agreed with Goff and explained: there is
a distinction between the standard ofproof to be
used by a disciplinary committee in making its
decision ab initio (from the beginning), and the
standard of review that must be used in
determining whether there was sufficient
evidence to support the result. As a result of the
courts own review of several previous
decisionsl49 considering this question, the court
concluded that the proper standard of proofto be
used in a disciplinary hearing in the initial
instance is a "preponderance of the evidence"
and the standard for the court to use in
reviewing the flDdings of the committee is
"some evidence."
The federal prison system adopted an
odd mixture ofn:quirements with the substantial
evidence and preponderance of the evidence
standards. The BOP requires a "fmding to be
based on the greater weight of the evidence and
which is supported by substantial evidence in

248

Goffv Dailey, 789 F Supp 978 (SO
Iowa 1992), affd ill part, rev'd ill pari, 991
F2d 1437 (8th Cir 1993).
249

Woodby v 1IIIIIIIgratioll &
Naturalization Service, 385 US 276 (1966)~
Wo/ffvMcD01l11ell, 418 US 539 (1974)~
Mathews v Eldridge, 424 US 319 (1976);
Superilltendent v Hill, 472 US 445 (1985);
BrowII v Fauver, 819 F2d 395 (3rd Cir )987);
Ullited States ex rei Miller v Twomey, 479
F2d 70 I (7th Cir 1973), cerl dellied, 414 US
1146 (1974); E"gel v Welldl, 921 F2d 148
(8th Cir 199).

How to WIN Prison Disciplinary Hearings

46

view ofcontradicting evidence".250 To further !hc
confusion, ill Rogers251 !he court said !hatlests for
detennining whe!her a decision of a prison
disciplinaJy conuniuee is adequately supported by
evidence is whe!her !he decision is supported by
"some" facts, and not !he preponderance of !he
evidence standard.
DisciplinllI}' hearings are not criminal
trials. The traditional standard of proof is nol
required beyond a reasonable doubt. Some courts
have required prison staff to have substantial
while most courts only require "some" evidence to
support its decision252. For !he sake of a prison
setting, "substantial evidence is defined as "proof
which a reasonable mind may accept as adequate
to support !he conclusion or final facts2.l3, Many
cases can be found to demonstrate if"substantial
evidence" exists. In Corcol'O" v S",il"~ !he
courts decided that relying on a written
misbehavior report prepared by a prison staff
member was deemed NOT to meet !he
"substantial evidence" requirement. Warden
Smith seemed to like to deny prisoners a fair
hearing255 .
Depending on your particular situation,
"substantial evidence" can become an area of
much debate. Analyze !he words, "substantial"
and "evidence" in a Legal Dictionary, then
combined to support your complaint. if in fact you
need to file one. In Rudd lU, !he courts found that
"due process was not violated if •some' evidence meaning, a"yevidence in the record - supports the
disciplinary decision." When a prison riot broke

2.50

28 CFR § 541.15(0.

251

Rogers v Oestreich. 736 F Supp 964
(ED Wis 1990).
Sa"ds v Waillwright, 357 F Supp 1062
(MD Flo), vacated, 491 F2d 417 (5!h Cir
1973), cert dell;ed, 416 US 992 (1974);
Lalldmall v Royster. 333 F Supp 621 (ED Va
1971); Washingtoll v Stale 405 So 2d 62 (Ala
Crim App 1981).
252

SIIa!':u,. v Cough/ill, 182 AD2d 928,
582 NYS22d 302 (1992).

253

254

People ex rei Corcorall v S"';tll, 105
AD2d 1142, 482 NYS2d 618 (1984).

255

People ex rei Bridges v 5i"itll, 105
AD2d 1142, 482 NYS2d 619 (1984); Lopez v
S",IIII, 105 AD2d 1124,482 NYS2d 583
(1984).
256

Rudd v Sarge"t, 866 F2d 260, 262
(8!h Cir 1989).

out in !he cafeteria where Z~l just happened
to be,!he courts IQund tItat "some evidence" did
NOT exist JUSI because Zaval'O was there, and
no one could testifY they saw him involved the
actual riot at !he disciplinllI}' hearing.
Prison staffcould use !he argwnent that
guilt was indicated and "substantially more
probable than innocence." You need to argue
\vith your \vilness' testimony, written statements
and evidence where they are wrong. Very
carefully, analyze the disciplinary report. and
argue as to its aecuracy, completeness and
condition of mind of the writing officer should
be your approach. Your burden needs to
demonstrate with a "reasonable" method, your
mnocence.
,In the slate laws, statutes, federal code
ofregulations and other rules have been created
for procedural processes. By reading your local
rules, regulations and statutes, these already in
place for !he groundwork for your argument. and
the rules of decision making prison staff are
required to follow. lfprison staffviolate those
rules, they violate law. For example, in Florida
slate, Florida Administrative Code 33-22 deals
with disciplinllI}' hearings. The words to look
for are: "shall," "must." etc. The use of these
words in state rules provide and create liberty
interest protected by the Fourteenth
Amendment, independent of any other
constitutional violations.
Drug tesls are one of the most difficult
to argue. New case law comes up almost every
day on both the side of the prisoners and staff in
the area ofdue process. Much has been written
in Chapter 4 of this manual on the subject.
Proof in Drug Tests

"Proor' in drug test results may be
argued as to their accuracy, and if they are
enough evidence for a finding of guilt.
Discussed in more detail in the Evidence
Chapter. Two relevant questions exist in drug
tests.
( I ) Proof in drug tests is whether
drug test results are sufficiently
reliable to constitute some evidence of
drug usage; and
(2) Proofin drug tests is whether the
particular testing scheme employed in
!he particular case was itselfsufficient
to meet the standard ofproof required
to be used in the particular case was
257

Zaval'O v Couglrli", 970 F2d 1148
(2d Cir 1992).

Chapter 6 - STANDARD OF PROOF REQUIREMENTS TO JUSTIFY DECISION
itself sufficient to meet the
standard of proof required to
be used by the disciplinary
committee.
Through good prisoner litigation, courts
held that "rumor or personal, wtrelated knowledge
about a particular prisoner, is not enough and
must be based on evidence in the record. nna
Wisconsin, was the fU'St state to even require a
minimal level of investigation before a
disciplinary hearing committee can make a
"factual determination" enough to meet the
requirements as described in the minimum due
process requirements in WolfpJ9.

258

Sallds v Waillwright, 357 F Supp ~062
(MD Fla), vacated, 491 F2d 417 (5th Cir
1973), cert dellied, 416 US 992 (1974);
Lalldmall v Royster, 333 F Supp 621 (ED Va
197 I); Massop v Lefevre, 127 Mise 2d 910,
487 NYS2d 925 (SupCt 1985); ill re Lamb, 34
Ohio App 2d 85, 296 NE2d 280 (1973).
259

State ex rei Meeks v Gaglloll, 95 Wis
2d I 15,289 NW2d 357 (1980) The Wolff case
is discussed in more detail in Chapter 2.

47

48

How to WIN Prison Disciplinmy Hcaring.,>

7 - RIGHT TO WRITTEN DECISION

In Wolff',1~ the Court held that in prison
disciplinary hearings, due process requires a
"written statement by the panel as to the evidence
relied on and the reasons for the disciplinary
action.1151 The court reviewed the issue of"intcmnJ
review ofthe committee's finding....., and if internal
review is not available, the findings might have
significant effects: disciplinary transfer, loss of
good time, or affect the parole boards
determination. 262 The II'o (ffcourt held that these
punishment considerations should not be based on
"understandings of the proceedings." A written
statement helps ensure against the possibility of
these misunderstandings. Ofcourse, the burden is
on you to make sure you have not given the
disciplinary panel room to argue "you said ..." and
you say "you did not say...... To protect against
this "misunderstanding", always present your
defense in writing and try to NOT make any verbal
statements unless you arc sure it cannot be twisted
or misunderstood against you. A written record of
the disciplinary hearing helps a prisoner in their
appeal TIle court also stated that a written copy of
the basis for the decision and the decision help in
the fairness of the disciplinary hearing itself.
Obviously, with an opinion like that, the court has
never been the subject of a disciplinary hearing.
If a prisoner appeals or requests a review
of the record of the basis and finding of a
disciplinary hearing, state officials, the public, or
the courts might latcr want to review the record,
and the disciplinary committee will want to indicate
that a fair hearing was conducted. Ifyou claim you
were not given a written copy of the reasons tor a
260

Wo(ffvMcDollllell, 418 US 539

(1974).
261

Wo(ffvMcDollllell, 418 US 539, AT
564 (1974); quoting Mon'issey v Brewer, 408
US 471, 489 (1972); sec also BrowII-EI v Delo,
969 F2d 644 (8th Cir 1992).
262

Wolff, 418 US at 565.

finding at a disciplinary hearing, and that is your
only basis for a legal action, the court may
review the written material and find, again, in
favor of prison authorities. It has also been held
that prison authorities may "expand" or
"amplifY" their reasons for their findings, after
the hearing has ended. 263
Ofcourse, the supreme court has taken
a "pro-prison approach" and not specified the
conleDts ofthe required record. other than that it
should include evidence relied on and the
reasons for the disciplinary action. 264 The courts
have also addressed the issue of "safety
concerns" for confidential infomtants, (aka
RATs) and their statements could be suppressed
in the JlXX)ro. but must indicate their existenceW.
Depending which Circuit you are in will affect
the disciplinary procedures. Check your local
decisions. Some courts have required a degree
ofparticularity to descriptions ofevidence relied
on 266• Some courts have held that more than
"boilerplate sentences" were required than those
that could have applied to every case and were
263

Cooper v Lalle, 969 F2d 368 (7th

Cit' 1992).
264
Wolff, 418 US at 564; See also, Killg
v Wells, 760 F2d 89 (6th Cir 1985), and
Broob-Bey v Smith, 819 F2d 178 (7th Cir

1987).
265

Wolff, 418 US at 565; See also,
Melldoza v Miller, 779 F2d 1287, 1295 (7th
Cir 1985) cerl den, 476 US 1142 (1986) (due

process does not require the disciplinary
committee to state on public record the factual
basis for its detemtination ofconfidential
infomtant's reliability).
King v Wells. 760 F2d 89 (6th Cir
1985); Hayes v Walker, 555 Fd 625 (7th Cir),
cerl de", 434 US 959 (1977); Chavis v Rowe,
64 F2d 1281 (7th Cir), cert dell, 454 US 907
266

(1981).

Chapter 7 - RIGHT TO WRITTEN DECISION
not appropriate. Disciplinary written decisions do
not need to be extensive, and may be brief.
However, by merely stating that it "accepted the
officer's statement and found you guilty" is not
adequate.
You should always assume you will need
to sue. Look at certain issues relevant to
overcoming a motion to dismiss for "failw-e to state
a claim on which relief can be granted" under Fed
R. Civ. P. Rule 12(6)(b). Expect in any litigation
a preliminary effort on the government under Rule
12 to dismiss your complaint before discovery is
effected. An important possible prisoner claim
should include "the prison disciplinary board failed
to adequately describe the evidence relied on or the
reasons for the sanctions imposed."w Other items
that should be contained in a written disciplinary
finding statement where applicable: 2dI
I.
Reasons for refusing to call
witnesses or not disclosing them269
2.
Reasons for not allowing
confrontation and cross examination
3.
Reasons for not permitting
substitute aid to the prisoner.
The court in Franklilr 7tJ looked carefully
at a written report which failed to indicate the
witnesses who testified against the prisoner and
why their statements were more credible than those
of Franklin and his witnesses.
Confidential
reports were also relied upon by the disciplinary
committec in its decision, but were not identified in
the report111 • The written report does not need to
analyze every issue in detail, nor does it need to
describe every particular defense raised by the
prisoner. 172

267

Ford v Commissioner ofCorreclion, 27
Mass App 1127, 537 NE2d 1265 (1989), review
denied, 405 Mass 1202, 541 NE2d 344 (1989).
268
Kyle v Hanbeny, 677 F2d 1386 (11th
Cir 1982) (record should include indication that
the disciplinary committee made inquiry into
reliability ofan informant and concluded
informant was reliable.)
269
Franklin v Israel, 558 F Supp 712 (WD
Wis 1983).

Franklin v Israel, 558 F Supp 712 (WD
Wis 1983).

270

49

State laws or statutes may require a
statement of reasons justifying the penalty
imposed by a disciplinary commitlee. Some
states allow disciplinary committees to change
the severity level category in accordance with
the guidelines, but the reason must be
documented on the record. 21J Some courts
require that a prisoner's record at the hearing
indicate whether he was or was not advised of
his right to assistance, and without this, a N.Y.
case was annulled. You need to carefully derme
your basis for litigation because the prison will
defend that your complaint of error was a
"harmless error", and "if the error had not been
made would not have affected the outcome of
the hearing." Not that they would win on those
,grounds.
But expect that arbitrary and
capricious attitude in the prisons defense
anyway.
The Supreme Court held a general
non-defmite position regarding contents of a
written report in that disciplinary committees
may issue conclusionary statements of reasons
for a finding of guilt and punishmenl As in
Hayes 214 many courts disapprove21' of
conclusionary statements: "The committee"s
decision is based on the violation report as
written and upon the report by the special
investigator which during your absence was
made a part of the record."
It has been held that by merely listing
the reports and statements relied upon. plus a
statement that the prisoner had been assaulted
by another prisoner was not sufficient to satisfy
Wolff. Similarly, a statement offacts underlying
or supporting the charge along with the factual
rmding ofa disciplinary conunittee was also not
adequate. 216

273

Slale ex rei Slaples v Depal1111enl of
Heallh & Social Services, 130 Wis 2d 308,
387 NW2d 551 (1986).
274
Hayes v Walker, 555 F2d 625 (7th
eir), cerl denied, 434 US 959 (1977).
275

Finney v Mabry, 455 F Supp 756

1985).

(ED Ark 1978); HarcJwickvAull, 447 F Supp
116 (MD Oa 1978), Federal prisoners see also
28 CFR § 541 15(g).

272

276

271

Ex parte Hawkilu, 475 So 2d 489 (Ala

Pitlo v Dalslrei"', 605 F Supp 1305 (SO
NY 1984); Rushing v Slale, 382 NW2d 141
(Iowa 1986).

Slale ex reI Meek.! v Gagnon, 95 Wis
2d 115, 289 NW2d 357 (1980); Fielding v
SIale,409 So 2d 964 (Ala Crim App 1981).

How to WIN Prison Disciplinary Hearings

50

Transcripts or Recorded Record

disciplinary board should preserve tbem for
review by the court on appeal ifnecessmy1ll6,

A clear statement universally required in
Wolff217 is "Without written records, the prisoner
will be at a severe disadvantage in propounding his
own cause or defending himself from others".
Federal policy requires a disciplinary committee to
give a prisoner a written copy of the decision and
disposition.m In Burballk 17t, it was found
improper that the written report be given to the
prisoner after the punishment was SClVed. In
Collins"X', the court recommended that a copy ofthe
wriuen report be given prior to the setVing of the
punishment allowing immediate pursuit of
administrative or legal remedies. Several state
court cases have held that even though a prisoner is
entitled to a written copy ofthe decision and basis,
it does not entitle him to a verbatim recording of
the prison disciplinary hearing. If a written record
of a disciplinary rmding is not provided, a tape
recording is permissible, at least if the tape is
prese1Ved for some minimum periodllll • But, if
adequate written records are not kept by a
disciplinary committee, tape recordings may be
judicially required,m
Several coW1s have held that no
constitutional right exists for a stenographic or
other verbatim record of the proceedings1l.l. The
Alaska constitution requires a verbatim record. l114
Many stales, as in New York, have provisions for
making transcripts or tape recordings of the
hearingw . If tapes are made, then the prison
277

Wolffv McDollllell, 418 US at 565.

278

28 crn §541.15(g).

279

Burballk v Twomey, 520 F2d 744 (7t11
Cir 1975).
280
Collills v Sullivall, 392 F Supp 621,
625 (MD Ala 1975).

281
Fi"IIey v Mab/y, 455 F Supp 756 (ED
Ark 1978).

Ruiz-v Estelle, 679 F2d IllS, 1155-56
(5th Cir). modified, 688 F2d 266 (5th Cir (982),
cerl dellied, 460 US 1042 (1983).
282

283
Craftoll v LUllrel, 378 F Supp 521 (MD
Teno 1974).

284
McGi""is vSlevells, 543 P2d 1221
(Alaska (975).

28S
Wall v Scully, 121 Misc 2d 698, 468
NYS2d 984 (1983) (lack ofcomplete transcript
violated state rule.); Jacob v WillCh, 121 AD2d
446,503 NYS2d 417 (1986) (absence of

(continued...)

(...continued)
transcript as required by slate law required a
new hearing.)
Flowers v Phelps. 595 So 2d 668 (La
Ct App 1991).

286

Chapter 8 - RIGHT TO APPEAL

51

8 - RIGHT TO APPEAL

BOP Prisoners Must Exhaust Administrative
Remedies
As reported in PriS01' Legal News

F.3d 990 (9th Cir. 1994)~ Reeves v Peucox, 19
F 3d. 1060 (5th Cir 1994).
Readers should notC that while habeas
corpus petitions require an exhaustion of state
Robert Nigro is a federal prisoner who
judicial remedies (for stale prisoners) or
was found guilty of drug use during urinalysis
administrative remedies for federal prisoners, §
testing at a prison disciplinary hearing. Negro tiled
1983 and Bivells actions seeking money
an administrative appeal to the warden and regional
damages do nol Readers should consider what
BOP director challenging
action they intend to
the results and sanctions of
tile, and research it,
the disciplinary hearing.
before they begin the
Ifyou want to recover your lost GCT, you
He had thirty days in
administrative
must exhaust Administrative Remedies. If you
which to file his last
appeals process.
only
want money damages, you do NOT need
appeal to the BOP's
Two
to exhaust Administrative Remedies.
general counsel and he
possible
appeal
Nigro v. SlIlIivan. 40 F.3d 990 (9th Cir. 1994);
was late in doing so, that
methods exist (I)
Reeves vPeltcox, 19 F 3d 1060 (5dl Cir 1994)
appeal was denied as
through internal or
But: According 0 the new 1996 Prisoner
being untimely. Negro
administrative
Litigation Reform Act, (PLRA), you MUST
then sought a writ of
appealsn7~
(2)
exhauslALL administrative remedies or you
habeas corpus in federal
through exlemal or
have waived your right to the courts.
court which the court
state or federal
Summarized itt tbe last Chapter in this book.
as
being
dismissed
courts. Continement
procedurally
defaulted
in
segregation
because the claims were
pending appeal is
not presented in a timely manner to the BOP's
permissible-.
Internal or administrative
general counsel. The court ofappeals for the ninth
appeals may exist in policy, some courts have
circuit affirmed.
held they are not required by due process. The
The appeals court gives a detailed
implied correctness of this position is in Wolf!"
discussion of the BOP's administrative remedies
for disciplinary appeals. The court held that when
287
28 CFR § 541.17.
BOP prisoners fail to exhaust their administrative
288
remedies within the BOP, their habeas petitions
Sellers v Roper, 554 F Supp 202
(ED Va 1982).
challenging the disciplinary proceeding must be
dismissed as being procedurally defaulted. Negro
289
WolffvMcDo,,,,ell, 418 US 539
argued that he had tiled his appeal in a timely
(197 4)~ Werli1Jger v Siale, 117 Idaho 47, 785
manner but the appeals court declined to extend the
P2d 172 (1990) (a rule requiring the warden
rule of Housli" v. Lack, 487 US 266, 108 S Ct.
respond to a prisoners appeal within 21 days,
2379 (1988), which allows for late tiling ofcourt
but failed to due so does not create a liberty
documents, to administrative appeals. The court
inlerest protected by due process, as long as it
gives an eXlensive discussion of the various cases
is not arbitrary and capricious.); Garfield v
concerning the timely filing ofcourt documents and
Davis. 566 F Supp 1069; Pearsoll v
administrative appeals. See: Nigro v. Sul/ivall, 40

(continued...)

How to WIN Prison Disciplinary Hearings

52

where Nebraska back in 1974, did not provide an
administrative review or method to appeal
disciplinary decisions. Now, some courts have
required prisons to have an internal review
process2'O. Where a disciplinary appeal method is
provided, a prisoner may not be permiUed to seek
other methods of review until after exhausting
appellate remedies29l •
Disciplinary review persons are not
allowed to consider material or issues other than
what is contained in the appeal and the disciplinary
report as relevant to the incident and may
not go outside the record191• In Sallds, all prisoners
must have equal access to the appellate process in
disciplinary actions, if made to others.
While some states require automatic
review ofdisciplinary action findings Z9l , most states
have placed the burden of appeal on the prisoner.
Each prisoner has the right to be informed of their
appeal rights and the appeal process. Many courts
have found that if a prisoner failed to abide by the
prescribed appellate time limits, this was
considered a waiver ofhis right for administrative
appeal 294 •
If you win a rehearing, you may be
sentenced to a more severe penaltyI". Of course,
the ultimate in disciplinary appeals, is taking it to
court.

(...continued)
Townsend, 362 F Supp 207 (DSC 1973).
Bono vSa'(he, 450 F Supp 934 (ED ILL
1978), aifd ill part, 620 F2d 609 (7th Cir 1980);
Burk v Coughlin. 97 AD2d 862,469 NYS2d
240 (1983), see also; Sheppard v LeFevre, 116
AD2d 867,498 NYS2d 190 (1986)(mandatory
internal review time.)
290

291

Adomo vJolles, 113 AD2d 973, 493
NYS2d 644 (1985); see Prison Legal News
article at the beginning of this chapter.
292

Somis v Wainwright, 357 F Supp 1962

(MD Fla), vacated, 491 F2d 417 (5th Cir 1973),

Right to Appeal and Court Review of
Disciplinary Finding

Prisoners have the right to appeal to
the courts for judicial review of a disciplinary
findingl". In Massachusetts COl1-ectional blSt
v Hill, the Massachusetts Supreme Court prefers
to deny prisoners access to the court. Of
course, expect the courts to give much greater
latitude to prison authorities in their decisions1!/7.
The 7th Circuit Court of Appeals has held that
"minimum due process requires that the
reviewing court conduct an in camera (informal
or in chambers) review of the entire
investigatory file, not just of the material relied
on to find guilt, in order to determine whether
exculpatory (clearing or tending to clear from
alleged fault or guilt) information existed which
should have been provided to prisoners prior to
the prison disciplinary proceeding198. But then,
how many times do investigating staff look or
collect exculpatory evidence even if it obviously
existed? If you suspect this area of problem,
your legal complaint will need to phrase the
language to eliminate just "an in camera review.
Prisoners also have the right to judicial review
where internal disciplinary procedures were not
followed z99•
Reversal on administrative appeal
doesn't moot a suit for damages as long as you
have already been punished, i.e. done all or
some of the seg time, etc., before the
administrative reversal. Your cause of action
accrues when you are denied due process at the
hearing. JOIl

C17JZ v Beto, 405 US 319, 321
(1972); See Massachusetts Con-ecliollal blSl
v Hill, 472 US 445 (1985) [II Mass v Hill, the
Supreme Court leaves the possibility in the
future that an administrative review that is all
that may be constitutionally needed so that
access to the courts can be denied
297

Blyant v Miller, 637 F Supp 226

cerl dellied, 416 US 992 (1974); Landman v
Royster, 333 F Supp 621 (ED Va 1971).
293
Vermont Statute Annotated title 28.
§852(c)(1986); Heimstra v Waltel~ 117 Misc 2d
245, 457 NYS2d 704 (1982).

(MD Pa I984)(prisoners have a right in

294

299

Lane v Hallheny, 563 F2d 648 (5th Cir

1979).
295

Bartholomew v Reed, 477 F Supp 223,
229 (D Or 1979), modified, 655 F2d 915 (9th
Cir 1982); Picard v State, 339 NW2d 368 (Iowa
1983).

appropriate cases to judicial review of
disciplinary proceedings).

Camphell v HellmQn, 931 F2d 1212
(7th Cir 1991).

298

People ex rei Yoder v Hardy, 116
ILL App 3d 489, 451 NE2d 965 (1983);
Prock v District Courl, 630 P2d 772 (Okla
1981).
300

Mays v Mahoney, 23 F.3d 660 (2nd

(continued...)

Chapter 8 - RIGHT TO APPEAL
In some states, (Michigan, New Jersey,
elc.) bUl nol all, slale courts review may be
available under the Slate's Administrative
Procedure ActJOI • In consideration of appeal
consider carefully. the appropriate judicial remedy.
In Clark JOJ. a slate habeas corpus that challenged
the disciplinmy proceedings was dismissed for lack
of jurisdiction. The court jumped through a
loophole and cited alternative remedies including
prohibition and mandamus (a type of writ 28
U.S.C.A. § 1361. Another court tragedy and
degrading effect on human rights is demonstrated in
the HallrahalrJ03decision where a guards false
testimony and the bringing ofa false charge against
a prisoner did not necessarily give rise to a federal
civil rights claim. Fortunately, a lot ofcourts have
limited Hallrahall since then. I wonder if a
prisoner killed a guard might be considered a
violation. Based on the weight of the evidence and
review. the prisoner is the underdog. Then courts
have gone on to say: when prisoners seek judicial
review. prison officials may not retaliate or harass
them for exercising their rights of access to the
courtslO4 .
The right to appeal or challenge a
disciplinmy hearing may be lost or deemed waived
as a result of a prisoner's refusal to appear before
the hearing officer. Such a waiver is not generally
presumed. absent evidence that the prisoner was
aware that the hearing would be conducted in
absentia (without you).
TIle prisoner may also be deemed to have
waived his rights to object to matters fIrSt raised on
appeal where no objection to the issues was raised
at the disciplinary proceeding. Prisoners can not
object on appeal in this New York case to the

53

hearing officer's viewing of a videotape where
no objeclion was raised at the hearing. S05
A prisoner who failed to object to the
adjournment or extension of a disciplinary
hearing. waived any claim on appeal to error in
that regard.J06 A prisoner waived any righllo
object to the introduction ofcertain evidence al
his disciplinmy hearing where he failed to objecl
to such introduction ofevidence at the time the
alleged errors could have been corrected during
the hearing. JOl The prisoner' failure to raise the
issue of whether his due process rights were
denied by his inability to obtain a copy of the
autopsy report perfonned on the slabbing victim
was not preserved for review because of the
failure to raise the issue at the disciplinary
.hearing. JOI
Indiana must consider prisoners
deserve no right to fairness others are afforded.
The Indiana Supreme Court held thal neither
statutes nor common law rules established a
prisoner's right to a judicial review of prison
disciplinary actions. JeW Whereas in New York.
statutes give authority to review prison
disciplinary panel proceedings by the N.Y.
Supreme Court. Appellate Division. JlO Many
courts do not like to grant a trial de II0VO, (a new
trial without consideration of the disciplinary
panels findings.) or to substitute their
judgements on the merits ofa case for thal of the
disciplinaly board JII Most courts have held that
prison disciplinary proceedings are entitled to a
30S

GOllzales v Coughli", 580 NYS2d
587 (App Div 1992).

Barrett v SelJkowski. 580 NYS2d
569 (App Div 1992).

306

(...continued)
Cir. 1994); Walker v Bales, 23 F.3d652 (2nd
Cir. 1994).
301

Meadows v Marquette PriSOIl Wardell,
117 Mich App 794. 324 NW2d 507 (1982);
Keellall v Van Geillell, 136 Mich App 364. 356
NW2d 640 (1984); Zellller v New Jersey Dept.
o/Con·. 201 NJ Super 195,492 A2d 1084 (App
Div), eerl dellied. 102 NJ 299,508 A2d 186
(1985).
302

Clm* v Solem, 336 NW2d 381 (SO

1983).
303

Hallrall v Lalle, 747 F2d 1137 (7th Cir
1984); see also Gilmore v Lalle. 635 F Supp
1637 (NO ILL 1986).

304
Smitll v Masclmer, 899 F2d 949 (lOth
Cir 1990).

Eleby v Coughlill. 580 NYS2d 537
(app Div 1992).

307

Ruiz v Coughlill. 584 NYS2d 224
(App Div 1992).

308

309

Hasty v Broglill. 531 NE2d 200 (Ind

1988).
310

N.Y. CivPracL&R§7801;
quoting MeKilmeyv Meese.·S3 1F2d 728 (7th
Cir 1987).

MeDom,ell v Wolf{, 483 F2d 1059
(8th Cir 1973), a./f'd ill part & rev'd ill part,
418 US 539 (1981); Col/illS v Vitek, 375 F
Supp 856 (DNH 1974); Lewis v Israel, 528 F
Supp 960 (ED Wis 1981). See also Reed v
PamJlt. 207 Neb 796 .301 NW2d 343
(1981).
311

54

How to WIN Prison Disciplinllry Hearings

preswnption ofregularity.JIZ The burden is on the
prisoner to establish reversible error and to show
and establish where you were wronged and how the
rmding would have been different if the error was
notdone. JU
Appellate courts also will not substitute
their view for that of a disciplinary board on
DlllUers relating to witnesses.J14 The only method to
get the courts to carefully scrutinize a disciplinary
hearing is to allege that your constitutional rights
were violated. 3U It is often not clear to the courts
whether a constitutional claim is at issue unless
clearly pled. Even though vindictiveness was
evident in a disciplinary charge and not raised in
the complaint, the alleged improper disciplinary
charge did not stale a constitutional claim as pled.JI6
Courts will also inquire into whether internal
procedural rules were followed. Prisoner's must
remember that even if an error has occurred at a
hearing. it could be harmless and likely not effected
the outcome of the disciplinary hearing rmding. Jl7
In a case where improper statements were admitted
at a hearing, the court found no material prejudice
because of"olhcr substantial evidence" on which to
base a conviction ofthe charged offense. J11
The largest difficulty prisoners face, along
with the courts is in reviewing disciplinary board
proceedings and not knowing precisely what
evidence if any, was relied upon in supporting its
decision. and the potential for an unreliable
312

Kelly v Nix, 29 NW2d 287 (Iowa 1983).

313

Thomas v State, 339 NW2d 166 (Iowa

1983).
314

Gilmore v Lalle, 635 F Supp
1367 (NO ILL 1986)~ Gibsoll v ROIISh, 587 F
Supp 504 (WO Miss 1984)~ but in Anllstead v
State. 714 F2d 360 (5th Cir 1983), the appellale
court criticized the magistrate for giving too
much deference to findings ofdisciplinary
proceedings, and ordered the magistrate to decide
ease on its merits.
Campbell v Beto, 460 F2d 765 (5th Cir
1972~ Kelly v Brewer, 525 F2d 394 (8th Cir
1975)~Adams vCarlsoll, 375 F Supp 1228 (ED
ILL 1974), affd ill part rev 'd ill part, 521 F2d
168 (7th Cit" 1975).

m

316

Colllllgs v Killg, 743 F2d 248 (5th Cir

1984).
317

Elkill v Fallver, 969 F2d 48 (3rd Cir

1992).
Killg v Wells. 760 F2d 89 (6th Cir
Wil/iams v Schulte, 605 F Supp 498 (ED
Mo 1984).

318

1985)~

reconPI~ The Sixth circuit has suggested that it
is appropriate for the names of conJidential
infonnants, RATs, and all clues to the identity of
informants be kept out of the public record and
access to the prisoner; but should be preserved
for court review. JZO The court has slated that if,
beclluse of efforts to protect an infonnant's
anonymity, evidence in support of prison
disciplinary actions supplied to the prisoner fails
to meet the constitutional minimwn of "some
evidence," then more detailed evidence,
sufficient to meet the constitutional standard,
must be placed in a non-public record for the
court to rc;view. You need to fight this issue in
detail and if evidence is suppressed, request a
general description of the evidence relied upon
asking the date. quantity and general description
of the pages, memos or other evidence.
In 1985. the Supreme Court attempted
to resolve the dispute in Superilltendellt,
Massachusetts Correctiollallnstitution v Hi/lUI,
The court held that due process requires that the
finding of a prison disciplinary board be
supported by "some evidence in the record"JD,
rather than the pre 1985 "substantial evidence"
rule. Depending on the local eircuit affects the
general position and their decision pattern on
evidential issues. Sometimes prison authorities
interfere with the filing oftimely appeals. Some
courts require that they be convinced by a
preponderance of the evidence that prison
authorities did in fact interfere. In Pennsylvania,
the court held that actions are not subject to
court review without the absence ofarbitrariness
or capriciousness. Being fair was not at issue I
guess, but placing the burden on the prisoner to
properly plead the necessary elements. Some

319
Saenz v Young. 811 F2:i 1172 (7th
Cir 1987).

320

Hellsley v WilsOll, 850 F2d 269 (6th

Cir).
J2I
Superintendent, ).,Jassachusetts
Correctional Institution v Hill, 472 US 445
(1985).

Tou.fsaillt v McCarthy, 801 F2d
1080 (9th Cir 1986), cert dellled, 481 US
1069, subsequent orderfollowillg remand,
711 F Supp 536 NO Cal, affd in part, rev'd
ill part, & vacated ill part. 926 F2d 800 9th
Cir, cel1 Jellied, 112 S Ct 213 (1991);
Cummillgs v Caspar;. 797 F Supp 747 (ED
Mo (992).
322

Chapter 8 - RIGHT TO APPEAL
courts do not like to review disciplinary merits at
all.m

Emergency
Appeals
and
Temporary
Conditions
Prior to a disciplinary hearing, a prisoner
suspected ofa rules infraction may be subjected to
a temporary change in status or segregation without
due process proceedings, under certain conditions.
The unstated assumption is claimed, usually
unfairly, but claimed anyway, that the prisoner is a
threat to themselves, to others, or to the security of
the institution. When a prison throws "everyone"
in the hole when given an infraction or pending
investigation regardless of the perceived threat , in
my opinion should be sued because the
presumption is arbitrarym. This suggests the need
for some sort of pre-detention hearing, however,
was rejected by the Supreme Court in Hewilr lS •
But, without a state created liberty interest in
remaining out of segregation, the right is absent. 3Ui
Procedural
protection
may
be
constitutionally necessary if interests other than
remaining in the general prison population are
implicated by the detention. 321 The real question
exists to be answered is: whether the prison
authorities have demonstrated sufficient
dangerousness to justifY a prehearing detention or
reclassification. Since this change in status will be
temporary, courts rarely require the same degree of

procedural due process as it requires at a
disciplinary hearing. 3D
Time for a prehearing or for
reclassification may not be excessive. J29 Ten
months is clearly excessive'JO, as has 33 to 83
days, and one court held that confmement in
segregation "pending investigation must not
exceed 7 days without unusual circumstances. 331
In Black,m the court held "inexcusable" for
Black to be isolated for 12 days out of a IS day
sentence before being informed of charges and
to be placed in punitive segregation for 18
months without an opportunity to present a
defense. In Drayton333 , the court held a delay of
I week in providing a hearing was
unreasonable. JJ.I

328

Bickham v Cannon. 516 F2d 885
(7th Cir 1975); Collins v Bordenkircher, 403
F Supp 820 (NO Va 1975); see also, Jones v
Marquez, 526 F Supp 871 (D Kan 1981).
329

Bailie v Anderson, 376 F Supp 402,
422 (ED Olda 1974); Hughes v Rowe, 101 US
173,177 (1980).

324

Sellers v Roper, 554 F Supp 202 (ED
Va 1982); Gilliard v Oswald, 552 F2d 456 (2d
Cir 1977); Hewill v Helms, 459 US 460 (1983),
rev'd, 482 US 755 (1987).
325

Patterson v Riddle, 407 F Supp 1035

(ED Va 1976), aff'd without opinion, 556

F2d 574 (4th Cir 1977).
330

Russell v Division 0fCo1Tections, 392
F Supp 476 (WD Va), afJ'dwithout opinion, 530
F2d 969 (4th Cir 1975)~ Flythe v Davis, 407 F
Supp 137 (ED Va 1976)~ similar state decisions
come from N.Y., Va., Ind.,Pa.
321

55

id, previous footnote.

331

Powell v Ward, 392 F Supp 628
(SONY 1975), modified, 542 F2d 101 (2nd
Cir 1976)~ but compare State v Luke, 382 So
2d 1265 (Fla Oist Ct App 1980) (no due
process violation in placing or prisoners in
administrative confinement pending
disposition ofcharges, even when there is
some prosecutorial delay.)
m

Black v Brown, 524 F Supp 856 (NO

ILL 1981), rev'd in part & aft" d in Part. 688
F2d 841 (7th Cir 1982).
333

326

Drayton v Rob/Juon, 519 F Supp
545 (MD Pa 1981).

Morrison v Lefevre, 592 F Supp 1052
(SONY 1984) (right ofaccess to courts of
prisoner-jailhouse lawyer implicated by
segregation.)

Bailie v Anderson, 376 F Supp 402,
422 (ED Ala 1974); see also King v Hilton.
525 F Supp 1197 (ONJ 1981); Jones v
Marquez, 526 F Supp 871 (0 Kan
1981 )(within 72 hours) ; but also see While v
Booker, 598 F Supp 984 (ED Va
1984)(wilhin 48 hours.).

Stokes v Fair, 795 F2d 235 (1st Cir
1986)(prisoner had, as a result of state
regulations, a liberty interest in "awaiting action
status" detention.)~ also see Hewitt, id previous.
327

334

S6

How to WIN Prison Disciplinary Hearings

Specific Procedures When Infracted (Chapters 8 - 20)

9 - EVENTS of INCIDENTS - GATHERING EVIDENCE

Suddenly, you become aware you are
getting a Conduct ReportJIncident Report,
"Shot,"JIR, or whatever your system calls them.
Usually the first definite sign is going to the
"hole" (segregation). Now is the time to think
through what has just happened and get it fixed
in your mind, to the last detail. Get it fixed in
your mind that this will end up in court. You
want to assume the worst. Your Due Process
Rights may be violated, intentionally. Your
First, Fifth and Eighth Amendment Rights are
likely to be violated. Build your case. You are
on your own, and this is how it's done.
Doing this is important to preserve the
details that could help you in your defense.
Accuracy of events as they actually happened
and the little details are important. Even a
minor conunent ofanother staff could show in a
hearing that maybe you really did not do
something as you are charged with. If their facts
are confused. you can use this in your defense
strategy. lbis can be done in several ways:
a) Write down whatever you can
remember: names, descriptions of
people whom you don't know by
name, room locations and most
important, what might have been said
by anyone that could be used in your
defense. For example; if an officer
says he found contraband in your
locker, but another unknown staff says
it was found somewhere else, - write it
down. Ifyou don't know the other staff
members name, his description
becomes just as important, as well as
what he said and they can be called as
a witness.

b) Ask other persons, including other
prisoners around you, who someone is
if you don't know their name as soon
as possible.
c) If you go to the hole, get paper and
pencil as soon as you get settled in.
Then make notes of the events,
remarks made, and any other evidence
which might be used later. Read the
chapters about Assembling the
evidence and how to evaluate it.
The purpose is to preserve the
evidence in your mind by putting it on paper.
You may refer to it later when you prepare your
defense for the hearing. The longer you put this
off gathering evidence, the more likely you will
forget valuable events that could help you WIN
your hearing. Even after you receive your IJR,
and even if you go to UDC (pre-hearing)
knowing you will end up before DHO (major
infraction hearing officer) (disciplin8l}' hearing
committees in the federal system), continue
making notes oflittle bits ofinformation, so that
it can all be refined into a winning final defense.
BP-9'. (Administrative Complaints) To
Force Evidentiary Disclosure
A BP-9, is a federal Administrative
complaint and it goes to the warden. A BP-l0 is
an administrative appeal that goes to the region.
A SPell, appeals to Washington. Check your
local procedures. Whatever the state, use your
local administrative complaint procedure here if
you have one.

Chapter 9 - EVENTS of INCIDENTS - GATHERING EVIDENCE
Often, staffdeny (lie) about evidence,
or circumstances exist which could justifY your
actions that led to the incident report, and will
not even discuss the issue. For example: You
test positive for Morphine, a code - 109
violation because the institution is serving
poppy seed rolls to you and the other prisoners.
You go to DHO(disciplinary hearing officer)
explaining the source but staff refuse to help or
even admit poppy seed rolls are in the
institution.
This is serious, and this actually
happened at MCC-Chicago. The staffrefused to
admit poppy seed rolls were in the institution,
and supported by the medical staff, claimed that
ONLY "over-dose" quantities could cause a
positive test Stafflied repeatedly, knowing they
were lying, with the intention to cause another
prisoner to lose his parole date.
You must now take an assumptive role
here; You accuse the staff or institution even if
they deny the situation exists in an
File a BP-9
administrative remedy.
(Administrative Remedy»>', with the assumption
the condition exists, by alleging facts, staff and
circumstances as best as possible. Your
position will not be the inquirer role, but allege
the situation exists, and make them disprove it.
Ifyou can also get others to file BP-9's also, this
will help. They are also in jeopardy of a positive
test. and could be punished unfairly. Then by to
get a copy of their BP-9 to include in your
defense or appeal.
Administrative complaints are good
discovery tools and force the institution to
address the issue formally. If they still deny the
condition exists, the only resort is legal action
after exhausting the Administrative Remedies.
When up against obstructive staff,
write to tbe BOP Region or DOC central office
asking for an extension in time to respond and
explain why, asking for help. They are
supposed to forward a copy ofyour letter to the
institution for.a response. You can never write
too many letters. Sometimes the only effective
method is to "bury them in paperwork until they
respond."
When filing a BP-9 or an
Administrative Complaint. keep it as short and
simple as possible. An opening paragraph
making the accusation, stating the person(s)
A federal Administrative Remedy
(BP-9) must be flied within 20 days after the
date of the incident. 28 CFR § 542 (dated Jan
2, 1996). The previous policy only allowed IS
days.
335

57

involved. the date of the incident and the
violation against you. Next. describe in one or
two paragraphs the details you allege and
supporting facts to your accustaion. Then write
a closing paragraph asking for relief describing
what you want as a resolution such as "I request
this complaint be investigated. and corrected,

58

Ilow to WIN Prison Diseiplinmy Hearings

10 - INVESTIGATING OFFICER QUESTIONS YOU

TheSupremeCourtuphelda3<kJaylimit

Investigation Begins Against You

inHullo vs FillllY.WI ANY time in segregation

Most likely, you have been placed in
Segregation by now, under Administrative
Detention (AID). In the federal system the
institution nonnally has 24-hours to give you a
reason, called a Detention Order. JJ6 You can aiso
be placed on Administrative Detention (AID)
"Pending Investigation" for up to 90 days in federal
joints. In Wisconsin, (2) 21 day invesitigation
periods may be steeked. States vary, so check your
local poiicys. After that. in the federal system,
pennission must be obtained from the Region or
Central Office. JJ7 If this happens, or you suspect
this ofhappening, write to the Region in your area
explaining the situation, asking lor intervention,
help or justification.JJ' Also, write to the Warden,
and everyone on down asking for help. Save their
responses, or at least copies of what you wrote
them in case you have to go to court against them.
TIley will usually claim, "they didn't know." You
may beheld in segregation indefinitely if you are
pending transfer or you are on writ. You may not
be held in Administrative Detention more than 30
days without a fonnal SIS (BOP) hearing, and must
have an infonnal review every seven days. JJ9

is considered punitive segregation. The courts
have also decided justification is required
Courts usually do not like to make those
decisions. If you can prove that you were placed
in the hole several limes without justification
and for malicious reasons, you may be awarded
monetary damages by the COurt.341
The incident will be investigated, at
which time you may lake advantage of the
situation for some investigating of your own.
You may also want to attempt a "discovery"
process at this time ofyour own:
a) Ask what evidence there is against
you. Ask iflhis is all ofit?
b) Ask to read, or have read to you,
any supporting memos
against you, and fmd out who
wrote them. Ask for copies
verbally and in writing by
writing a memo to the
Captain, your Counselor, and
if you think you may have
problems, write also to the
Warden. !fyou need to later
take legal action, do
everything in writing and
make everyone aware of the
situation so they become
liable with their responses. 34J

28 CFR § 541.11 (Table 2) Time Limits
in Disciplinary Process, also sec Appendix A in
the back of this manual.

336

337
28 CFR § 541.22(a)(6)(i) ..... within 90
days ... return to population .....

In Wolff, the Supreme Court suggested
that due process protections were not necessarily
applicable to a mere loss of privileges seemingly lumping them altogether. Other courts
took a more discriminating approach,
distinguishing among different types of privileges
in CIIi/chelle vs Procullier, 510 F2d 6) 3(9th Cir
)975), rev'd sub 110m Baxter vs I'almigiollo,
425 US 308(1976).
338

339

28 CFR § 541.22(a)(c, 1-3).

340

Hullo vs Fi,,"y, 437 U.S.
678,98 S. Ct. 2565 (1978) .....·mostly because
of the bad conditions..."

Prisoners Self-Help Litigation
Manual, by Daniel Manville, source is in a
Chapter 24 for source in footnole.

341

By wriling to as many relevant
people as possible, if the matter has to go to
court in the future, these persons can be

342

(continued...)

59

Chapter 10 - INVESTIGATING OFFICER QUESTIONS YOU
c)

Be very careful answering any
questions. Staff is not there to
help you. This could be the
difference between winning and
loosing because the staff
investigator will write down
what he rememben you saying,
but in his own version. It
doesn't hurt to say NOTHING
and make them prove their
case. Loose lips, sink ships.
d) If the Incident Report is a 100series,MJ it must go to DHO
(BOP) for hearing; which is out
of the institutions bands, and
most 200 series are passed to
DHO.M4
If this Incident Report is the 6th, or more,
of a 300-series (BOP)(minor infraction), it will
most likely go to DHO (disciplinmy hearing officer
who handles serious infractions). Generally, 300
and 400 series violations will be beard and dealt
with by the UDC. Your disciplinmy history and
your relationship with staff plays an important role.
It is a detennining factor whether it will be resolved
by the Investigating Officer or at UDC.MS Ifyou
are on good tenns, it does not hurt to ask for an
infonnal resolution If an infonnal resolution is not
probable, watch what else you say. Talking will do
you no good in most circumstances. If the Incident
Report is a 100 or 200 series, you usually do not
benefit yoursclfby talking - you only benefit them.
Sometimes, it might be better to do seven days on
Administrative Detention, "pending investigation."
You could get 30 or 60 days of Disciplinary
Segregation time and a transfer, just because you
flapped yourjaw needlessly. Often-times, you give
them most of the rope by which they, figuratively,
hang you.
If you are known for filing complaints
against staff, andlor legal actions, often the staff

(...continued)
included os defendants who failed to respond and
cannot claim "ignorance" os their defense.
In the Federal Prison System, a
nwnbered severity level is assigned to infractions.
A 100 series incident report is the greatest
severity and a 400 series is the lowest severity.
See Appendix A for a complete listing ofpossible
federal (BOP) rules violations.
343

344

28 CFR § 541.1 5.

28 CFR § 541.14 (a) UDC is the first
level ofdisciplinary hearing conunittees in the
federal (BOP) system.

345

will be much more cautious in the handling of
your disciplinary action. Sometimes staff will
go all out, by lying, writing false memorandums
and seeking assistance to complete the
fraudulent action against you.
If you
docwnented everything said. testified to and
request everything in writing, you build strong
groundwork for a successful appeal or a new
legal action.
Your 5th Amendment Right against
self-incrimination, also applies here. You do
NOT have to answer ANY question you feel
could inaiminateyou. So just say so. Don't dig
your own hole, expecting to get out of it later.
UDC must hear your Incident Report
within three working days mop>, from the date
ofthe incident, excluding the date on whicb the
incident occurred. M6
Don't answer questions from pressure
by the investigating officer or other staff. It
usually means a weakness in their case.
Sometimes, without good evidence against you,
you will be placed in segregation "pending
investigation" hoping someone or even you will
admit or tell (rat) on you or another. This often
happens in code 20 I (fighting) violations.
The violation severity level of the
Incident Report, doesn't matter with the time
allowed for UDC to hear the allegation
Sometimes, UDC fails to act within the three
working days. You can get the incident report
expunged on those grounds alone. At UDC,
claim that the incident report is "moot, and not
heard timely." If the incident report is not heard
timely, you should raise the objection, on the
record, at the hearing and also state that your
defense is prejudiced because of the legnthy
time passed. Check your local policy.(see BOP
time limits in Appendix A)
Being placed in the hole for protective
custody (PC), you have the right to a hearing
within two working days. If it is decided that
you should stay in the hole, on Administrative
Detention, a fonnal hearing must be held within
seven days ofyour placement in the "hole" for
PC.M1
If you are placed in the hole on
holdover status, 8 hearing shall be held weekly
with you for review of this status.)4I
28 CFR § 541.11 (Table 2) Time
Limits, also see Appendix A
347

28 CFR § 541.23 (protection

custody)
348

28 CFR § 541.22 (Administrative

(continued...)

60

How to WIN Prison Disciplinary Hearings

If you are going to he criminally
prosecuted by the government for your incident, the
investigating. or other staff may NOT question you
about ANY of these events leading to a possible
new criminal charge. 349
Your Rigbts under tbe Constitution

You have lite right, under the United States
Constitution to:
1. Freedom of Religion & Speech,
2. Freedom from Self-Incrimination,
3. Right to Due Process of the Law,
4. Freedom from Cruel and Unusual
Punislunent,
5. Right to Legal Assistance,
6. Freedom of Communication with your
Lawyer,
7. Right to Prison Assistance - and more.
8. Limited 4l1t Amendment rights against
WJreaSOnable searches, (mostly mail, UIA's,
etc.)
The most popular Due Process case is
where a prisoner brought a lawsuit against a
Nebraska Slate prison in Wolffvs McDom,eIP!o. He
was denied "reasonable" evidence presentation and
witnesses in defense of prison disciplinary action.
The courts found and decided tltat the prison must
grant reasonable Constitutional Rights, which were
not taken when he was convicted of a felony.
Which means, you have lite right under the United
States Constitution to be able to:
I. Present evidence on your own behalf~
2. have access to any evidence to be used
against you at a hearing~
3. have reasonable time to prepare your
defense.
Some institutions believe, incorrectly, iliat
they don't have to reveal information they intend on
using against you. This is <'fien wrong, and you
should protest, in writing to everyone possible from
the Warden 011 down. By doing this, you put them
on notice, and make them liable ifyou need to bring
cowt action. Do as much as possible in writing and
get as many responses in writing you can. You can
sometimes use these later in your .<Iefense or
appeals.

If you suspect Due Process violations
or you were denied witnesses and the right to
present evidence on your behalf. read the law.
Other legal examples will help you understand
in cases found in the Civil Rights book #42
1!.nited ~tates hode, section )983, note 791 840 (discipline of prisoners)351 and in Chapter
22.
Consent Searches

Fourili Amendment rights have long
been argued by prisons and prisoners alike.
Prisons claim "security" reasons and courts
don't like to get in the middle. In Hudson JJJ,
the supreme cow1 held prisoners have no
Fourili Amendment potcction against cell
searches. Prisoners only retain rights modest
Fourili Amendment protections against body
cavity searches. The Supreme Cow1 has not
provided a definitive answer about what is a
valid waiver ofyour Fourth Amendment
rights. Instead, it has suggested that this be an
issue to be figured out after looking at the
"totality of the circumstances."m
A waiver of your rights against
search may not be valid if conditioned on the
exercise ofanother constitutional righl
Meaning, one constitutional right cannot be
conditioned on the waiver ofanother. J34 If you
can establish an independent constitutional
right meaning, a prison official's threat to
\vithhold it unless you agree to give up another
right would not be allowed by the cow1. For
example, your mail privileges, including
sometimes, the right to contact the courts,
could not be limited, waived or conditioned on
your agreement to allow your letters to be
censored. m
Use

or Evidence Seized in a Search

Assuming contraband is discovered
in a prison search that you claim violates your
351

42 USC § 1983, note 791 - 840
(discipline of prisoners).

.Hudsoll v Pale",r, 468 US 5 17, 104
S Ct 3194; 82 L Ed 2d 393 (1984).

352
353

(...continued)
Detention) and 28 CFR §541.22(c)(2) (hold-over
status)(BOP).
349
28 CFR § 54 1.1 4(b)(1 )

Wolffv. McDonnell, 418 US 539, 41 L
Ed 2d, 94 S Ct 2963.

3S0

Schlleckloth vs Bustalllollte, 412
US 18(1973).
3S4

Gan"ity v New Jersey, 385 US

493(l967)~

Frost vs Railroad Comlllll, 271
US 583(1962).
35S

Palmigiallo vs Trovisallo, 317 F
Supp 776 (DRI )970).

Chapter 10· INVESTIGATING OFFICER QUESTIONS YOU
Fourth Amendment rights is involved? In
criminal trials, neiUlcr the conlJ'aband nor Ule
incriminating evidence gotten from it may be
used as direct evidence against you. U6 Some
searches that would be unconstitutional in a free
society may be considered "reasonable" in
prison. m No arguable Fow1h Amendment
requirements exisist relative to property, etc. in
prison or must be followed even in disciplinary
hearings. U8

356

Mapp vs Ohio, 367 US 643 (1961).
This so-called exclusionary rule also applies to
prisoners in U.S. vs Lilly, 576 F2d 1240 (5th
Cir 1978).

U.S. vs Vallez, 653 F2d 403 (9th Cir),
cert dellied, 454 US 904 (1981), the coW1 held
that a letter seized during a cell search for escape
plans was properly admitted in defendant's trial
for murder. The letter was found in a partially
sealed envelope and described the murder. The
court said that ordinarily a prisoner retains a
privacy interest in a sealed letter which is subject
to protection under the Fourth Amendment unless
the search serves ajustifiablc purpose of
imprisonment or prison security.
3SB
U.s. vs Stumes, 549 Fd 831(8lh Cir
1977); U.S. vs Ready, 574 F2d 1009 (10th Cir
1978); Gardller vs JOhllSOll, 429 F Supp 432
(ED Mich 1977).
3S7

61

How to WIN Prison Disciplinary Hearings

62

11 - EVALUATING YOUR INCIDENT REPORT

institutions so you won't know
everything said against you until you
are in the hearing and don't have time
to prepare a proper defense. Demand
to get copies of these in advance from
the investigating officer or write to the
warden if you have to. If a verbal
request won't get them delivered, do it
in writing.

There are many arguments you can use in
your defense. Get copies of evidence they intend
00 using against you. 3.'9 What is believable? Ifyou
break it down into simple length terms your defense
falls into five basic categories discussed later. You
may examine the effcct of this incident report on
your security level by gelling a current copy of a
form called "Chronological Disciplinmy Action
Report."
This is u...ually gollen from your
COW1Sclor or case manager. Then get a copy of the
Security & Designation Manual (BOP), normally
from the law librmy. In the back of the Sccurity &
Designatioo Manual, are the fonns and formulas for
this re-evaluation. Re-figure, ifyou wish, the effect
this incident report will have on your security level,
and whether you may be transferred ifyou lose.
Before evaluating your defense, let us try
to understand the significance of the incident
report itself. Often incident reports are written
wrong, proper procedures were not used correctly,
or many other reasons exist which could give you
grounds to have it thrown out. Using the examples
below, attempt to dissect and break apart the
contents of your Incident Report.

c) Are the infonnation boxes (name,
number, time, date ... etc.) ftlled out
com:ctly, or do they have errors and/or
contradictions?
Especially pay
attention to dates, times, and the place
of the incident, always looking for
conflicting errors.
d) In boxes 9 & IO - check to see if
what is written makes sense with the
alleged actions you are charged with.
For example, suppose you are charged
with Insolence [code 312360 (BOP)
violation]. They slate that you looked
insolently at the officer, or you said
"What are you going to do, write me a
shotT' Usc the dictionmy to derme
"insolence". The dictionary says:
"boldly rude, offensive, insulting or
shocking to the moral senses." Since
the ollense does not fit the definition of
"insolence", your grounds (per word
definition) to have the incident report
expunged are strong.

Analyze your report

a) How do the facts in the Incident
Report compare with what actually
happened'l Is the allegation REALLY a
violation? Can they prove their allegation
is a Violation?
b) If supporting memorandums were
written to support the Incident Report, do
you know what thcy say? If not, can you
guess what they say? Sometimes you can
guess what is written by knowing who
wrote the memo. These are used by some

c) On the IIR, in box II - check for
sentences structured improperly or
words that are misspelled. Check the
general sound or understanding of the
allegation, sentence by sentence. Do
you need to guess at the meaning of

359

YOllng v Kam" 926 F Supp 1396 (3rd
Cir 1991) (prison staff must provide evidence to
be used against you at least 24 hours before the
hearing.)

360

Code - 312 violation: Insolence
towards a staff member. (see: appendix
A)(BOP)

Chapter II - EVALUATING YOUR INCIDENT REPORT
what is being said in the sentence
desclibing your infraction of the rules? If
you must guess at the meaning or spelling
of words, or if sentences, or the whole
passage, just does not make sense to you
in the way it is written - then, you have a
good argument to have it expunged. You
CANNOT be convicted, based on
guessing the meaning of an alleged
violation. If you are, your grounds for
winning on appeal are strong.

This application of "first hand
knowledge"
is important in
WINNING!
h) Is the Institution using Lab Tests
against you to prove their charge?
You must now consider "Due Process"
and the "Timeliness" of the Incident
Report. A vital fact is - when was the
IJR written, compared to when was the
Lab Report received? Lab and alcohol
tests and reports can often times be
confused, screwed up by the staff, lab
and sometimes the prison fails to order
what is called a "confirmatory" test as
required for THC and some other
drugs. J61

t) In box II - does the Incident Report
apply to the possible areas of the alleged

violation?,,1 Meaning, does the charge fit
the crime? If not, include that as an
argument in your defense strategy. For
example, it might be safe to admit, or at
least not deny, the alleged actions; but do
deny violating any rules, posted or
otherwise. If you are charged with a
violation, when actually another violation
would have been more correct, don't offer
to point to the correct violation361 • UDC
or DHO may raise, lower, or change
violation code. Be careful, sometimes
they change it., giving you additional
grounds for appeal. You may ask for an
extension in time to respond based on the
revised allegation.
g) The incident report, in box 11- does it
say that the Officer "saw" you do anything? Is your name and number actually
calling you the person who committed the
action? If not., this is reason to have it
expunged. Did the officer wi/ness this or
is he guessing that you did the deed? Just
because the officer says you did
something without actually having
witnessed the event, he cannot say that he
saw, or heard, or in any way testifY that he
did! For example: you are charged with
breaking a window. If in the Incident
Report or in any written memorandums,
there are no witnesses named who
actually saw you break the window, then
they have no case. How can you be
convicted, if no one saw you do anything?
361

28 CFR § 541.13 (Table 3), also in
Appendix A.

362
28 CFR § 541.17 (h)(i) UDC or DHO
can change a violation to a more appropriate
violation if they see a violation that fits the
allegation more accurately.

63

Once the institution receives the lab
report, make sure that they wrote the Incident
Report against you within the allowable timeJ64.
There are defenses against many positive drug
tests. Few are valid and most are what they
appear. DHO (BOP) often see many weak
excuses. Even when you have a good defense,
it is very hard to win a dirty UlA. J6S But by
anyway, you have nothing to loose.
Arguments for Your Defense

There are five (5) possible defense
arguments. Again, I sUess that you tell the truth.
But, there is nothing wrong with presenting a
bad situation in an innocent or good light. Take
a bad situation and make something good with
it. Do this by down playing your offense and
make it sound trivial. Many examples described
in this manual show you how. For example: if
you were seen punching a guy in the nose, by 50
stat( it does no good to say you didn't do it, even
with a straight face. On the other hand, one of
the following five 'U'guments can be worked into
your defense by studying the details and being
creative with the approach to your defense. They
are as follows:
1) I did not do it!
363

See the Evidence chapter for more
infoIlDation on Drug Tests.
364

28 CFR § 541.11 (Table 2) Time
limits. also in Appendix A. Staff are allowed
nOIlDally 3-working days to write the incident
report.
365

See the Evidence chapter, for Lab
Reports: Drug - Alcohol Testing.

How to WIN Prison Disciplinary Hearings

64

2) I did it, but did not violate any rules or
regulations.
3) Say nothing about the alleged
infraction about if you did
anything or not, but the
evidence against you doesn't
support anything. (Use when
they cannot llll5prove you did
anything).
4) I admit the allegation, but under the
circwnstances,
I deserve
consideration
of reduced
sanctions.
5) The Incident Report, or UDC, is
untimely and not processed
according to policy.'67
Now let us break down the five possible
defenses with some examples, and at the same time
argue each point. Relate the arguments to your
own incident report.
The "I didn't do it" Argument

When you argue based on "I dido't do it,"
you need to be able to show a reasonable argument.
Some reasons will convince UDC or DHO why
your incident report should be expunged. For
example, you are charged with a code 307 violation
• ''Refusing to obey an ord~6lI." The questions you
could argue might be:
a) "He never gave me a verbal order."
You would nonnally need witnesses or
evidence that the officer failed to give the
order other than your own word against
his. If it is your word against his, you will
loose every time, unless you have some
kind of evidence or witnesses, etc. They
arc winnable without witnesses, but not
very often.
b) "I never heard him give any order."
Or. ':1 did not hear because the TV was
loud and others around were laughing."
Or, " . .. a loud jet flew overhead and we
were unable to hear." Or. "... Hislher
voice was so soft, I couldn't hear it over
the dishwasher," etc. I do not hear very
366

Did they see, hear or have a witness that
claims to have seen you?
367

See: Appendix A.

See the chapter, Writing Your Defense
( Sample Defenses), also Appendix A for other
BOP offenses without example defenses shown.
368

well J69 and I did not hear anyone speak
tome.
c) "The officer never re-slated the
order, even after it was obvious I had
not heard him." Or, "I didn't
understand what he was saying." "I
thought he was talking to someone
else. not I. and he never did anything to
make sure that I knew he was talking
to me." "He used someone else's name
when he gave the order, not mine."
"I'm having PMS,"J70
The "I didn't violate
regulatioDs" Argument

any

rules

or

When your argument is based on "I
dido't violate any rules or regulations."You may
want to call the rules & regulations in your
defense. They are in your Admissions &
Orientation Handbook, posted on the walls. and
told to you almost every waking hour by some
officer who hasn't gotten any hwnan nookie
lately. J7I The rule the officer may claim exists,
in actuality may not truly exist at all. A'ik to see
a copy ifyou have a question. Sometimes policy
or rules are said to exist, but don't exist and you
are being lied to. This is common at some
places.
If the rule does not exist, or under
"nonnal" circumstances you would not be expected to have knowledge of that rule, then it
wouldo't nonnally apply to you. For example:
You are in the Dining Room, and you drop your
tray. Some officer having nothing better to do
except show off and he writes you an incident
report for 8 code - 317 violation (BOP)
("Failure to follow safety or sanitation
regulations"), or a code 330 violation (". . .
being unsanitary or untidy ... CO). Let us look at
this from several angles:
369

Make sure you have a medical
restriction if at all possible. at least by the time
you go to UDC or DHO in writing. Get
Medical Restrictions fonn the Physicians
Assistant or Doctor. You can even get
medical restrictions for Shy bladders, sun &
UN exposure limitations and many more.
370

fre Menstrual §yndrome.

The staff person could be just out of
high school and is determined to get even for
all the times someone took their lunch money
and being a prison guard is the best life could
offer them.
371

Chapter II - EVALUATING YOUR INCIDENT REPORT
a) What posted regulation says I can't
drop my tray?
b) It was an accident and I did not
intentionally drop my tray. No regulation
says I can't accidentally drop my tray.
c)
The Incident Report and the
Admissions & Operations Manual
(BOP), along with any posted regulation,
say nothing about "NOT dropping your
tray,"
Therefore, I violated NO
regulation. You can't show me such a
regulation because there is no such one
that exists. Ask to see the alleged
regulation for the alleged violation before
going to UDC or DHO.(BOP)
The "You don't have proof"Argument
If your argument is based on "You don't
have proof' and you "dispute the evidence or
allegation," then you should, as in a court, have a
reasonable idea that they CANNOT prove their
claim. ACTUAL evidence ofyou violating policy
has not been shown in your discovery attempts312•
Be prepared to call your witnesses and ask for
copies of their evidence and show your evidence at
the hearing showing you arc innocent of the
allegations. Sometimes, you can use the evidence
that is presented by the Institution in your defense and it can be used, by you to your advantage against
them. If the institution lakes photos, often they
aren't very good, and don't show much. Call the
photos in your defense sometimes to down play the
erroneousness of the alleged offense. Look at the
photos during the initial investigation and dccide if
you want to use them. m
For example: If you get an x89 or x99
charge -Iltey are usually easy to win. (x =meaning
any munbcr like 199, Z89, J.99, etc.) (BOP).J74 On
an x89 or x99 charge, if you dispute that they were
obstructed or disrupted in any way, consider calling
witnesses; then look to the incident report for any
evidence they have might have provided to support

372

The Supreme Court in Wolff v

McDom'ell, 418 U.S. 539, 94 S.Ct.296 (1974)

have said you have the right to gel evidence to be
used against you at the hearing. to be disclosed to
you in advance so you may prepare your defense.
Photographs are usually taken on
allegations ofDamage to Property, or ifyou really
injured someone in a fight.
373

374

tables.

See Appendix A for BOP violation

65

their allegation such as: whal an actual'''
disruption took place other than "NORMAL"
activities. This way, you can usually beat these.
Actual disruption must exist. Something that
has been going on for days, weeks, or months,
cannot suddenly be your fault. Most institutions
won't use an x89, or x99 charge, because they
usually don't work. Again, merely guessing you
might cause a disruption is guilt based on
guessing. Guessing, which is unsubstantiated,
requires the incident to be expunged.
A more difficult code to consider is the
code 208 violation ("Possession of an
unauthorized locking device or damaging a
locking device"). Assume that you were the
only person in the room when an officer
discovers putty stuck into a lock in the room
door. Staff takes pictures, and places you in
segregation. You will want to see the pictures
during the "Officers' Investigation." and you
will want to find out what memorandums were
written. if any. Now let us dissect. or tear apart
the Incident Report against you: J76
a) "The putty was in the lock before I
got there."
b) Pictures - only show "nonnal wear
& tear'.m or "improper construction"'."
375
Is ANY actual evidence of
disruption, threat to the security and orderly
running of the institution. etc. shown? Just by
slatTmerely making the accusation, is NOT
enough for
an honest conviction.
Without EVIDENCE of a disruption. etc. the
allegation is unsupported and should be
thrown out.
See the chapler, Writing Your
Defense (defense examples) for additional
methods and ideas to set up yoW' defense
structure and to help you plan yoW' defense
strategy.

376

377
Often times, when charged with
damage to property, defenses often times could
include consideration for what is called
"nonnal wear & tear'·. Ifyou are driving your
car, and the transmission goes out. are you
going to be accused of intentionally making
the transmission break? This is the thinking
paUem you should explore on these types of
issues.
378

Was it originally constructed
properly. For example: you leave a room.
shut the door (rather hard. but we won't
mention that), and the glass window breaks.

(continued...)

66

How to WIN Prison Disciplinary Hearings

The material that looks like putty is just tape from
the painters when they painted the door and didn't
remove all the lope; OR it looks old and has been
there for a long time. The officer claims that when
he noticed me in the room, "he did a close
inspection," thus discovering the putly. Your
defense could include, the door merely lacked
mainlenance. You could be in ANY room and
tmder "close" inspection some maintenance could
be discovered that needed to be done any time.
c) PiclW'es - show nolhing wrong with the
lock~ or with anything,
d) Maintenance ofthe lock ... etc. - has
not been done tor a long time or, was not done after
the discove.y", and the door is still being used
without any alterations. This can only mean that
nothing was aclua11y damaged. Ifthe lock has been
repaired, then you might want to call the maintenance man to testify about what exactly he did in his
repairs, and what was the suspected cause of
damage.
e) No persons saw you do anvlhing. nor
does the Incident Report, or any other
memorandums say that anyone saw you do
anything. Therefore, no evidence has been
presented you did anything to the door or lock,
which becomes a strong argument to request the
shot be expunged. Nothing exisL.. which links you
"directly" with the allegation, except that you were
in the room - which is not enough for any "burden
ofproor."
f) The dictionary definition of"damage"
is: injwy or harm that reduces usefulness or value:
not being able to enjoy its normal value of
usefulness. You should dispute damage by
definition of the word "damage."
The "Admit and Plead for Mercy" Argument
"Admit and plead for mercy," one or all
the charges, when the sanctions are applied. A
double benefit could exist in pleading to a lessor
charge and denying a more serious charge. For
example, you are charged with a 200-series (BOP)
and two 300-serics(lcssor) charges. You may want
to consider admilling the 300-series, or one of them

(...continued)
You could allege the glass was inslolled
improperly, and under "normal" usage, it would
have eventually broke any way.
379
CaII as a Witness,
.
the mamtenance
.
person who allegedly repaired the lock, etc. ifyou
can word the questions in your favor and get
definite answers that will help you. See the
chapter on SlaffRepresentatives & Witnesses.

that you know they can prove, while little
c\'idencc exisL.. to support the 200-scries (the
more serious charge). Now believability comes
into a strong consideration at the final
disciplinary hearing before DHO (BOP). It
would be considered that you might at least
appear to be honest by admitting your guilt in a
beyond the shadow of a doubt charge against
you Then when you deny the charges (with the
lessor evidence), you are more believable.
The "Expired Time Limitations" Argument
. If the time to serve you your copy of
the incident report expired beyond 24 hours, or
if tI1mt80 working days has passed (excluding
the day of the incident) without a UDC hearing,
then the meaning of the Incident Report is moot,
and it should be expunged. You MUST point
this out. Even if they ignore the issue, go on
with you defense as ifthe time had not e;\-pired.
and raise the time issue on appeal. JII
Presenting Your Defense
Go into every disciplinary hearing
assuming you will need to and end up litigating
an adverse fmding by the hearing persons. Make
yourself familiar with withe elements you may
need to prove in court. Anyone facing a
disciplinary hearing should prepore the
groundwork for litigation as soon as possible.
By not laying the groundwork for litigation, the
court couid say "you waived your right to raise
the issue in court by not raising the issue at the
hearing."
You have the right to present your
defense, call witnesses and provide documenlary
evidence. You can even call the writing officer
as is allowed by the following: ..... The
reporting officer and other adverse witnesses
need not be called if their knowledge of the
incident is adequately summarized in the
Incident Report and other investigative
materials'..." This means, that ifthe officer did
not include, in his report, information important
to your defense, or if he chose to leave out of his
report certain events of tile situation (events that
he knows ofand were left out for some obvious
reason), then you have the right to call that
officer to testify for you at your DHO hearing.
380

See Appendix A , Time Limilotions

Table
381

You wiil need to allege that UDC
and/or DHO did NOT follow policy in the
process of your hearing according to policy.
See Appendix A. Time Limilotion Table.

Chapter) 2 - UNDERSTANDING UDC <unit Disciplinary Committee)
The other infonnation is called "additional
infonnation," and relates to the incident in a way
that is not mentioned in any memo or in the
Incident Report itseU:
For example, the results ofa popular case
WoljJvsMcDOIlIlelf'% requires that you be allowed
Due Process, which as a federal prisoner comes
under the Sib Amendment Rights, or as a Slate
Prisoner comes under the )41b Amendment Rights.
The Wolff case is something every prison should
familiar with.
Your appearance, conduct, and the way
you speak is important when going before a
disciplinary committee because it can lake away
and reduce your credibility. Winning is assisted by
your presentation, by sounding and looking honest
and believable. Most UDC or DHO don't believe
ANY11IING a prisoner says no maller even if you
were in another country when the incident
occurred. I personally know of one just like that
Keep good records ofany improper actions and usc
them on appeal. Sometimes, you will not win no
matter how much proof you provide, or how hard
you by. But with a proper defense you have a good
foundation to winning both now, or on appeal. JIJ
382

Wolffvs McDo""ell: 418 US 539; 5596394 S Ct2963~ 342 F.Supp 616~ 483 F 2d
1059 (J 97) -3). Shepanlize this case for cases in
your District and current law. If you need help,
ask the Law Clerk or someone who knows how to
Shepardize a case.
383
See specific UDC, DHO or general
appeals within the BOP.

67

68

How to WIN Prison Disciplinary Hearings

12 - UNDERSTANDING UDC (Unit Disciplinary
Committee)

UDC (BOP) consists ofperson(s) who lhe
Warden designates to act as UDC committee
members. No UDC commiuee staff member can
be a witness to lhe incident in question, nor can
helshe have a significant part in lhc charges, unless
almost every stafl"member witnessed the incidentJ".
UDC usually consists of lhree (3) staff members,
but one (I) can act as lhe UDC committee. UDC
operates as follows:
a) Staff gives lhe prisoner a copy oflhe
charges; Ordinarily wilhin 24 hours after
the slaffbecomes aware of the incident. W
b). ~C must normally hold your hearing
wIlhm three (3) working days, excluding
the date of lhe incident, weekends, and
holidays.J16
c) You are entitled to be present atlhe
UDC hearing, but it is not mandatoI)'.
You are also entitled to present evidence,
make a statement on your own behalf, and
present a written defense. You have the
right to remain silent- ifyou choose.
d) UDC may drop or resolve informally
a 300 or 400-series violation. They can
also apply sanctions as allowed under
policyW, or refer lhe maUer to DHO.
e) UDC must normally provide you wilh
a wriUen copy oflheir decision by lhe end
of the next work day. They also must
pn.'Pare a wlitten record of lhe hearing to
be included in your Central File. If lhe
maUer is expunged, it will be discarded,
and a copy will not go into your Central
File..
384

28 CFR § 541.15.

38S

See Appendix A (Time Limitation

f) If UDC refers lhe matter to DHO,
you have lhe right to request witnesses
Ul be called and a staffrepresentative.
An important factor to remember at
UDC, as in any hearing, is lhatlhey are NOT
trained to be Lawyers or Judges. They may not
fully understand standard court procedures that
you already know, but lhis is NOT a court. It is
meant to be more informal. and the rules of
evidence and burden of proof is much less.
UD~ is the place for you to beg for mercy. if
lhat IS what your defense is going to be. If you
have had problems wilh the institution staff. you
may have better luck wilh DHO. depending on
the DHO person and the Institutions' ability to
unfairly influence lheir case against you
regardless ofactual guilt.
UDC can act as a buffer between DHO
and other staff. Sometimes by explaining you
have a problem that appears to be happening
fr~qu~tly with.a paJ'!icular staff, they may take
thiS mto conSideration in recommendations.
Sometimes UDC will attempt to slam you as
hard as possible, even lhough policy does not
allow what they request from DHO as sanctions.
Be aware of this, and know your rights. If UDC
asks for 60-days disciplinBl)' segregation on a
300 - series incident report (which is not
allowed by policy), you may want to consider
this in your defense that not only lhe incident
repo~ is preposterous, but so are the requested
sancUons.
Remember. don't trust them. No one
is lhere to help you or be your friend. Prison
staffhave, will and most likely lie in 80% oftbe
time, or more.

Tables).
386

Sec Appendix A (Time Limitation

Tables).
387

28 CFR § 541.13 (table 3) also in
Appendix A

388

See the chapter, Staff
Representatives and Witnesses.

Chapter 13 - DEFEND YOURSELF AT UDC (pre Hearing)

69

13 - DEFEND YOURSELF AT UDC (pre Hearing)

Be Confident Say only what is
goal with
confidence. Ifyou sound, or act guilty,
it could work against you. Speak with
authority.

UDC hearings can be described as two
types ofprocedW'CS: I. Ihe 100 - seriesJ19 and 200 series incident reports, 2. and Ihe 300 and 400
series violations. I am asswning that you have read
and undersland chapters I and 3 of Ibis manual.
Now what you need to consider is, "How is UDC
going to treat me?" Again, your relationship (how
much Ihe slaff likes you compared to those they
dislike) with the slaff is important Don't expect
many breaks if you have been pushing their rules
down their !broat But, 'kiss butt' (figuratively
speaking), and you can expect a break once in a
while. It is called 'Politics'. But, we all know
people like that

2.

necessaJ}' to accomplish your

3. Say as little as possible. When
asked a question. remember Ihey are
out to get you, not to discover that you
could be their friend. Answer them. if
you choose, but very carefully. There
is not anything wrong with not saying
anything. OR in saying"All I have to
say is in my written statement" Do
not allow yourself to be suckered into
answering questions that could only
hurt you, unless you are admitting the
incident and begging for mercy or just
don't care.

A. Going bcforc UDC with a 300 - 400 series

Incident (lst !brough the 6th time):
I. Write out your statement and present
this when called for your hearing as
"Your Written ResponscJ90:' When asked
questions, if you have decided to providc
a written statement rather than talk. let
your paper do the talking for you. Don't
blow you own case. If you choose to
provide an oral statement, make your
statements clear and to the point without
talking about things that don't malter,
which will only confuse the issue. UDC
will summarize what you say on their
copy of Ihe Incident Report and may
quote you wrong or misunderstand what
specifically you may intend to be saying.
That is why it is bellcr to make any
statements in writing so there is not any
confusion. It is hard to dispute your
verbal statements (as UDC understands
them) laler if you decide to appeal and
then claim, "I never said thaL:'

389
(BOP) 100 series, which are the
Greatest Severity may not bc informally resolved,
and MUST be passed to DHO. Usually, all 200 series incident reports will also go to DHO for
resolution.
390

See Ihc chapter, Writing Your Defense.

4. This is not a friendly chat! If you
are on good terms with the slaff and
have gotten minimal or no shots, it
may help to just relax, speak carefully
and to the point, and be friendly to the
UDC. But - Remember, they are not
here to be your friend You may
always request that they refer to your
written statement and if it is not in your
written statement, no further comment
will be given.
B. Going before UDC with J00 - 200 series
Incident (& 6th or more of 300 series):
I. UDC transfers all these191 to DHO.
It is going to DHO, so why waste
your breath in a situation where it will
not mean anything except, usually, to
dig yourself a bigger hole. UDC can
recommend the sanctions they wish
391

UDC (BOP) must pass all 100 series incident reports to DHO. They usually
pass 200, and the 61h or more 300 - series, etc.
toDHO.

70

How to WIN Prison Disciplinary Hearings
and DHO will most likely grant what
UDC asked for, IF the institution wins
againsl you.
2. Hold Your Real Defense for DHO.
Faced with going lo DHO with your
"shot," if you insist on giving the
Institution advance warning and time to
prepare their offense, give them a short
wriUen defense to summarize your positionJ93• It does liUle good to say very much
at UDC when going to DHO. Remember, whatever you say will most likely be
used against you.
3. Choose Staff Rep - Prepare List of
Witnesses. You will be offered your right
to call witnesses and a staffrepresentative
by UDC for your DHO henringl9J • Be
prepared to give UDC a list of these
names you wish called as witnesses, with
a short, half-sentence summary of whal
they will be called lo lesti(v about. You
don't have to tell them exactly what the
person will be asked in his testimony.
For example: information about what the
witness saw or heard ahout the incident.
Keep it general and non-specific because
you don't want to give a specific direction
you may intend on taking with your final
defense. If you don't know the persons'
name, ask UDC to find out by giving a
physical description.

392

Sec the chapter. Writing Your

Defense.
393

See the chapter, Staff Representatives
and Witnesses.

Chapter 13 - UDC to YOUR SENEFIT (pre & Minor Hearings)

71

14 - UDC to YOUR BENEFIT (Pre & Minor Hearings)
Yes, you can work UDC (SOP) to your
own benefit. Now that you understand how they
work; let's get them to work for you as best as
possiblel~.
If you know you have "nothing
coming," make sure we get what we have coming and whatever else you can gel
Can you get UDC to do your investigation
for you1 Can you get them to tell you what their
evidence is against you? Really 1 I 1 Is it possible
for you get them to help you in a reduced sanction?
Can you get them to recommend the Incident
Report be expWlged? The answers to all these
questions are defmitely "YES'" Otherwise, I
would not waste your time. Ways to use UDC:
a) Get the UDC or Investigator to do
yoW' investigation for you, by asking them
to find the answers to your questions. Do
this by a careful evaluation of your
Incident Report as described in Chapter
3, and asking only specific questions
which you suspect will result in favorable
answers. You can ask them to fmd those
answers that you need. Sometimes, send
a memo to that staff, asking the question.
b) Read ALL their Evidence. Ask I Get
them to teU you ALL the evidence against
you by asking. Find out what the written
memorandums say and ask for copies.
Ask to see the pictures and lab tesls, ask
lor photocopies. Sometimes they will not
show them to you. When this happens,
mllke a note of it, because it violates your
"Due Process" righls. You can use this in
your appeal, if necessary. If you are
denied copies of this material, put it in
writing memos' to the proper staff, like
394

Many times, staffwill not do anything
to obstruct you every time you aUempt to
complete your defense, or gather information for
your defense. When you suspect this, gather
names ofstaff, and get their responses in writing
as if you already know you will have to bring the
maller to Court. This is a Civil Righls violation
of your Due Process Righls, protected by the
Fifth Amendment (Slate prisoners would claim a
Fourteenth Amendment violation) ofthe
Constitution for federal prisoners. See the
chapter, LEGAL BASICS & COURT OPTIONS.

the Captain. Warden, etc. or even write
to the Region, asking for help, saying
the institution has refused to provide
evidence they intend on using against
you. File BP-9's, 10's and II's
(administrative complainls) on the
individual issue. As they say, "shit
rolls down hill." That's why the guards
are always at the bottom ofthe hill..
c) Get them to help you get a reduced
sanction. Talk to the investigating
officer, or staffmember. Captain. etc.
that you may know, explaining the
situalion. Ask if he can do anything to
help you in your discovery process.
Also, ask UDC for consideration by
their recommending special conditions
for a "possible" reduced sanction.
d) Get UDC to recommend that the
shot be expunged. It may not happen
very often, but it does happen. If you
receive a shot with 3-charges, you
should ask UDC, based on limited
evidence, recommend that one or all
charges be expunged at DHO. If your
facls are clear, and no evidence exists
supporting the Incident Report. request
that they recommend the report itself
be expunged. Sometimes UDC helps
you indirecdy, by requesting the
maximum or inappropriate sanctions
be applied to a non-serious Incident
Report which is being sent to DHO
with no, or Iitde. supporting evidence.
Then, you can use that exaggeration, of
sanction application, to show the
humor of the Incident Report itself,
and that the only reasonable thing to do
would be to expunge the IJR.

How to WIN Prison Disciplinao' Hearings

72

15 - STAFF REPRESENTATIVES and WITNESSES

You are going to DHO (BOP) and you
must choose your witnesses, and possibly a staff
representative. First, let us talk about your staff
rep. Things you should know about staff
representatives are not always published in a
Program Statement or Code ofFederal Regulations
(CFR).
At the Institution where this manual was
written. staff careers have been threatened for
helping prisoners too much with a DHO defense.
In another Institution (in which I spent sometime
"visiting"), staffwould be suspended without pay
for two days, if they helped an prisoner too much.
or if they came between another staff and prisoner
on a disciplinmy malter. Of course, these are
unwritten rules. Why ask for help from someone
who may want to help, but could cost them their job
security and his pay-check by helping you?
StatT Representative
If you wish a staff person to help you on
your DHO hearing, you should understand what
their responsibilities are, and what you can do by
yourself without their help. I have seen very little
of even reasonable representation from a staff
member. Most ofthe time, they just sit. saying little
or nothing, while you do your best to present your
own case, while thinking they will jump in and
actually help any time. Then you wonder why you
lost?
In federal prison, you have the right to a
staff representative of your choice, assuming the
person is available, and that it is not a conflict of
roles. In state prisons, you will likely only be given
a lepresentative ifyou cannot read. mentally ill, etc.
"Thestaffrcpresentative shall be available to help
the prisoner, if the prisoner desires, by speaking to
witnesses and by presenting favorable evidence to
the DHO on the merits of the charges. or in
extenuation or mitigation of the chargesm ." Most
staff reps, whom I have seen, know less of the
proper procedures contained in this very basic
manual. Often they don't understand how to analyze an Incident Report, OR they don't have the
395

28 CFR § 541.17(b).

time, or ability, to research a problem through.
Another strong reason for NOT using a staffrep
will be discussed shortly. For now, let us look at
the positive side.
Take an incident report which alleges
you have drug paraphernalia, (a code 109
violation>. when what you have are some rolling
. papers that came in a can or bag of tobacco.
You got these from another prisoner. who got it
from another institution. It also came through R
& JY9' legally. This presents several problems.
Do you want the Staff Rep to
recommend DHO change the shot to a 305violation (possession ofanything not authorized
through regular channels), OR to change it to a
400-series violation (Possession of property
belonlring to another person)? Some would say
take !he lessor charge. But, what if the prisoner
threw the tobacco away and you got it out of the
trash can. This would be the best defense. The
prisoner who threw the tobacco away, into the
garbage can has a property slip for it. showing it
went through R&D and is legally in the
institution. assuming the institution does not sell
tobacco with rolling papers.
Here is where a staff rep could help.
They could talk to the other prisoner from whom
had the tobacco and threw it away. They could
call the institution where the tobacco was sold,
and then testifY for you that the tobacco and your
rolling papers are legal within the institution,
because "it was sold in the commissary at the
other institution, and the bag or can say that
rolling papers are included." When the other
prisoner was transferred here, his property came
with him through R.& D and was approved to
retain by not doing anything to prevent it from
being here.
Now you need to make a decision. Do
you want to plead guilty to a 300-series
violation, or a 400-series violation? Neitherl
You got the tobacco from the trash; and it didn't
396

Receiving & Departure. Where aU
prisoners property comes through and is
approved to be in your possession at the
institution.

Chapter 15 - STAFF REPRESENTATIVES and WITNESSES
belong to anyone then, so that eliminates even the
400 series violation.

Now for the 300-series violation. This
charge is not a valid charge either, because what is
a "regular channel?" Is there any regulation that
says we cannot dig anything from the trash? NO,
there is Not! If there is, ask to see it. This Incident
Report should only be totally expunged. but a staff
representative might recommend a trade off to a
lessor violation. You need to take charge! If you
do use a staff rep, you can greatly help him by
providing him your written statement. such as you
would present to the DHOJ97, and a list of questions
that he should ask the witnesses. But. policy
prohibits your staffrepresentative from presenting'
written questions to DHO to ask witnesses. But,
your Staff Representative may ask the witness
questions you write out. Unfortunately, they may
not ask them ALL or as you have them written.
This could ultimately affect the testimony and the
outcome ofyour incident report.
Staff reps can help, if you know how to
direct their actions properly. If the staff rep refuses
to do it your way, drop him~ and either request
another staffrep (which you probably won't get),
and will cause another delay. or you can go on you
own - which is what this manual is all about. At
the DHO hearing. you can waive your staff
representative after they have done the legwork for
you and gathered the evidence you needed.
The advantage of NOT having a stall'
representative, is freedom. You have a lot more
ability to control your defense process by yourself.
"The prisoner who has waived staffrepresentation
may submit questions for the requested witnesses in
writing to the DHO."l9S By submitting written
questions to DHO, you control the evidence being
presented for you, which protects you from leaving
it up to whomever just happens to be around to
represent your casel".
DHO may pass your hearing to another
date if the witnesses or your staffrepresentative is
unavailable.
He may also request written
statements from these witnesses regarding your
questions, so that their presence may be waived.
Or he may refuse to call your witnesses, if he
considers their testimony to be redundant,
inunaterial, or is duplicated in the incident report or
written memorandums and therefore repetitious.
Be careful DHO does not violate your Due Process
397

See the chapter, Writing Your Defense,
with some example defenses in the end ofthe
chapter.
398

28 CFR § 54 l.l7(c).

399

Sec the chapter, Writing Your Defense.

73

rights to call witnesses, as reasonably required.
Often the refusal of DHO to call your witnesses
is wrong and you should state this in your
appeal. It's called, your "Procedural Due
Process" rights where violated by DHO by
\refusing to call your witnesses without
justifiable cause.
By not having a staffrep, you present
your case in writing, making a written
presentation of you position. Like in UDC, if
your statements are NOT in writing, the DHO
will swnmarize your statement. Correct or not,
they will make it part of your response on the
record. If you appeal, and DHO misunderstood
what you said, or did not summarize it correctly,
you are stuck. If it is in writing, there is no
dispute on what you said, because it was written
by you.
I would normally NEVER use a Staff
Representative. They are not really on your
side. They are there because ofsome policy that
puts them between their own job and you. Staff
reps also will not argue with the DHO. even
they know full well DHO is wrong in the way
the hearing is progressing.
Your staff
representative will also not want to get involved
in your Appeal with a written statement
supporting what was actually testified to during
the hearing.
Layout your evidence to be presented
in order, and save the confusion of pUlling staff
between you and other staIf. You will normally
benefit in the end without staff representation
because of the obvious impartiality.
Witnesses

If you fail to request any witnesses at
UDC, then you have waived your right to call
witnesses that may help you win. This consent
will be upheld as "consent through not objecting
or calling witn~::s timely." Call all those you
may want or think can help. You may waive
their appearance at the actual hearing through
not calling them in your Written Questions for
DHO to Ask Witnesses. You do NOT have the
right to cross-examine witnesses yourself but
must ask questions through the DHO officer or
a staffrepresentative.
When UDC asks you about any
witnesses you may want persons called for you,
have an idea beforehand who you might call.4CIO
Wolff \IS McDo""ell, 418 US 539,
S66 (1974). See also McCmm v Coughli",

(continued...)

How to WIN Prison Disciplinary Hearings

74

T"illkCQrefll/~vabout what they might say, and how
they would present themselves. Ask yourself
several qucstions, such as: Are they believable?
When they speak, do they sound like they are
pulling some scam? Can they articulate, or speak
clearly enough to get the point across without
confusing the issue? Will they answer the
questions honestly and correctly? How does DHO
perceive that person?
These ate all important
considerations and your decisions should be made
carefully. Witnesses can sometimes tell the truth,
but sound like they are not. This is not the type of
representation you want. If you want someone to
tell the truth, but they think you want them to cover
for you. by to talk with them in advance, or ONLY
ask in writing through DHO, YES or NO
questions.
NEVER ask a question you don't already
know or have a good idea what the answer will be.
Sometimes, you think someone might respond to a
question in a particular way, but it could very well
turn out just the opposite. If you have contact with
your witnesses, tell them to tell the truth, and not
cover for you. Then you use the truth to your
benefit Be prepared to impeach a staffwitness if
the submit a written memo, then testilY to
something contradictory during the hearing.
It will help you if you can tell the
prospective witness what questions will be asked
before the hearing, by getting them a copy of your
written questions, or just asking them. It will help
him be comfortable, knowing what is expected
from his tcstimony.
You have the right to present your
defense, call witnesses~O' and provide documentary

(...continued)
698 F2d 112 (2d Cir (983)~ 81'011'1/-£1 v
De/o, 969 F2d 644 (8th Cir 1992) (prisoner has a
right to call witnesscs and to prescnt documentary
evidence at a disciplinary hearing unless to do so
would be unduly hazardous to institutional safety
or correctiona! goals).
40t

The question whether an prisoner has
the right to compel an unwilling witness
to testiJY was raised in DaIIOl/ vs
HIIIIO, 71 F2d 75 (4th Cir 1983). In
Forbes vs Trigg, 976 F2d 308 (7th Cir
(992), eerl del/iell, 113 S Ct 1362
(1993), the court of appeals held that,
generally speaking, due process was
violated by an Indiana Dept. of
Corrections that allowed prisoners and
staff to refuse to testify at a disciplinary
hearing without giving an explanation as

(continued...)

evidence. You can even call the writing officer
as is allowed by the following: "... The
reporting officer and other adverse witnesses
need not be called if their knowledge of the
incident is adequately sununarized in the
Incident Report and other investigative
materials402••• " This means, that if the officer
did not include, in his report, infonnation
important to your defense, or if he chose to leave
out of his report certain events of the situation
(events that he knows of which were len out for
some obvious reason), then you have the right to
call that officer to testilY for you at your DHO
hearing. The "other" information is called
"additional information," and relates to the
incident in a way that is not mentioned in any
memo or in the Incident Report itself.
Call . the writer of the Incident
Report,40) only if you are calling him about
something NOT contained in the Incident
Report, or in a memorandum. Some DHO don't
like to call anyone that might help your case. Be
especially careful about this. This is ground for
winning on appeal. If the DHO refuses to call
your witness (DHO claims the witness is
adverse and won't add to your position), write
this down and remember the details. Write it
down as soon as possible, so that none of the
details are forgotten. This is important for your
appeal. Some DHO's are reasonable~ others are
NOT. On appeal you need to allege a Fifth
Amendment for federal prisoners, or Fourteenth
for State prisoners Violation of your Due
Process Rights, by denying you witnesses that
could have changed the decision ofDHO.
You may also call outside witnesses,
from the general public, as professionals, or if
they observed something and can contribute to
your defense. "Witnesses may be called from
outside the institution 4lN • • ." They will
probably not be interviewed in your presence,
but would be interviewed in a different part of

(...continued)
to why they would not testiJY. In
Pillo vs DalsIJeim, 605 F Supp
1305 (SDNY 1984), the court
explained the ditTerence between
witnesses who would testilY the
occurrence ofan offense and those of
only mitigating circumstances.
402

28 eFR § 541.17 (c)

403

28 CFR § 541.17 (c).

404

28 CFR § 541.17 (c).

Chapter IS - STAFF REPRESENTATIVES and WITNESSES
the institution. Your written questions couJd make
or break your defense.
Make a mental note, during the DHO
meeting, about whether or not the DHO person
asked your witnesses all the written questions
which you submitted. noting if they were asked the
way you wrote them. This also, may be grounds for
an appeal if the DHO changes your questions with
an unjustifiable reason. DHO may by to cloud their
responses by asking inaccurate or vague questions
that could open the door to a response that doesn't
really help your case. DHO is supposed to stick to
you reasonable written questions.
Open all your written questions to your
witnesses with a short paragraph reminding them
why they are there. For example: "This hearing is
about a code.liM~ violation where Inmate ~06
was charged by Officer Duffast01 for possessing a
gun in segregation on November 18. 1993. at about
6:30pm.~01 Do you remember this incident?"
By structuring your questions with the
sentence structure where the first part wouJd state:
I.
Who (noun - person, place,
thing, quality, etc.).
2.
Did what (predicate - statement
of action, expresses action,
describes quality or
something).
3.
Who - How (verb - main
element ofa predicate and typically
expresses action, state, or a
relation).
Chapter 18, sample 3 shows an actual
defense with questions as they shouJd be structured
for your witnesses. You only need to present the
following four things as the basis for your defense:
l. Facts
2. Logic
3. Conclusions reached by applying logic
to facts.
4. Authority which supports either your
logic, your conclusions, or both.
405

Insert your violation(s) code nwnber.

406

Insert your name here.

407

Insert the writer's name who wrote you
the incident report to help build the background
for your defense questions.
408
Insert the date and time, to jog their
memory as to where they were and what they
were doing at the time. It also qualifies their
testimony as being present andlor having direct
knowledge thereof.

75

How to WIN Prison Disciplinary Hearings

76

16 - UNDERSTANDING DHO (Disciplinary Hearing
Officer)

DHO (BOP) consists of a person,
independent of the Institution assigned by the
Region, under the Warden. to conduct hearings and
review the evidence the Institution has gathered.
This includes facts that could lead to further
criminal charges. The DBO team consists of the
Hearing officer, an institution assistant. and usually
an officer who stands in for security purpo~.
DHO is simpler in its ways than UDC but more
structmal in some ways as shown by the following:
a) The DHO officer cannot be a witness,
he must be impartial, and he may not play any
significant role in the incident which is referred to
DHO. If an impartial DHO officer is not available,
the warden must request from the Region another
trained and qualified person to be the DHO officer.
b) DHO shall conduct hearings, make
fmdings, and impose sanctions for misconduct
referred for disposition by UDC as required4lO •
DHO may not hear a case that has not been before
UDC. Only DHO may impose or suspend
sanctions' A through F as allowed411 •
c) You must have received a copy of the
Incident Report 24 hours before being heard by
DHOm. You may ask for an extension of time to
prepare your defense. wait for important evidence,
or to adequately meet with your staffrepresentative.
He may deny your request for an extension, if he
believes it is irrelevant and found not necessary.
You may appeal, ifyou fccl he denied you enough
time to prepare an adequate defense.
DHO does not go by standard rules of
court evidence,.so don't expect it to. It is informal.
and the courts have required at least the basics of
due process to be followed, as it is in UDC actions.
The receptiveness to your defense depends strongly

409

28 CFR § 541.16

410

28 CFR § S41.15.

411

28 CFR § 541.13 (Table 3) - Prohibited
Acts and Disciplinary Severity Scale, also in
Appendix A.

Sec Appendix A, Time Limitation Table
2, (28 CFR § 541. II ).

m

on how you present it. Remember, when DHO
seems unfair, this is politics. Don't tell DHO
how much you know about the law or its
procedures. It only irritates them even though
he may be jerking off to cat pictures, etc as in
Moody v McNamara, 606 F.2d 621 (5th Cir.
. 1979). _Consequently, he will make you look
silly, when he then brings attention to some
minor spelling error or missed evidence in your
own defense. You can WIN, by doing it
carefully and smart.
You may also request or be assigned a
different DHO person, other than tile usual
because of a re-hearing or other prejudice you
may allege or has been discovered. 4IJ Ifyou file
a lawsuit or other papers against the DHO
officer, you may request. and would normally be
granted a new hearing officer. If not. document
this, and build grounds for expanding your
possible legalaction(s) against the institution.
You may file Administrative Remedy's
(BP-9's, 10'5, etc.) against the DHO person,
just as you can UDC persons ifyou allege things
NOT about your conviction issue or attempt to
overturn his decision in those specific BP-9's,
JO's, etc. Ifhe denied you witnesses, state: "he
denied you witnesses as a procedural error and
did it intentionally or maliciously." You also
need to say that: "this complaint is NOT an
Appeal. and is a separate complaint for not
following policy." Most states and federal staff
will deny you the opportunity to file grievances
with claims against disciplinary persons. Their
defense is that they claim your complaint is an
actual "appeal ofthe disciplinary fmdings." But,
at least you tried and now have more
documentation to support possible legal
litigation.
Some DHO persons need to have
complaints filed against them because they
through out the rule book and only think the
rules apply to you and not them. You can show
them this is not true by filing a complaint against
DHO or UDC persons by starting with a BP-9
(Administrative Remedy).
413

28 eFR § 541.16.

Chapter 17 - APPEARING BEFORE DHO

77

17 - APPEARING BEFORE DHO

requested, and then ask you
ifyou have any statements to
make4l1• If you have not
already given him your
wriuen statement, do so now.
Have DHO refer to your
written statement for your
version ofthe incident. OR if
you choose not to use a
written statement, this is the
time to tell him your version.
Written statements are best
because what you Write
cannot be confused. onutted,
or twisted to their benefit.
d) Evidence for Appeal - Write It
Down. If DHO makes any
procedural errors like
omitting evidence for
consideration, or refusing to
call witnesses for an
unsubstantiated reason, or
changes a code violation to
something even more absurd
then the shot you went in
with - write it all down·1••
Remember as much as you
can, and make notes so that
you may appeal later and
win.
e) Decision - Appeal. Within 10
days after the DHO hearing,
you should receive a copy of
the decision rendered, and
the reasons for the decision.
through the Institution mail
or delivered by stair". It
will be dated with the date
you receive it, and you have
20 days to file an appeal,
including the time to mail it

DHO is simpler than UDC. The process
is direct and the staff level is trained for what he is
doing, unlike UDC. You need only to be

concerned with the issues and the facts used for
your case. Don't talk about things that are not
important to winning and defending your position.
DHO is supposed to follow the roles
presented in the manual·'·. If you want more
infonnation on your exact rights and procedures,
read this section in the Code ofFederal Regulations
(CFR) mentioned in the footnote # I ofthis page.
A summary ofthese regulations follows:
a) List of Charges. You have the right
to a list of the charges at least
24 hours before you go to
DHO.4U
b) StaffRep. You have the right to use
your stafr representative if you
choose to use one·". Your staff
rep should have met with you
before the DHO meeting, to
review your case with you, and
to speak with any witnesses as
needed. Your staff rep will
meet you at the DHO meeting.
Ifhe/she is mabie to be present,
you have the right to postpone
the hearing until he/she can be
present, or to have another staff
rep selected. You can also
waive staff representation then
and go on your own.
c) Written Statement- Witnesses. DHO
will read you the Incident
Report, and review any
documentation
regarding
evidence that supports the
allegation, if asked to do so. He
will call your witnesses, if
414

28 CFR § 541.17.

41S

See: Appendix A, Table - 2, (28 CFR §

417
418

28 CFR § 541.17(c).

28 CFR § 541.17(b).

419

28 CFR §S41.17 (g).

541.11).
416

28 CFR § 541.19 (a - c).

78

How to WIN P. ison Disciplinary Hearinss
responsibility to get it to the
region in time'~.

Attitude
The method in which you present yOW"
defense to DHO makes a difference. Ifyou go in
with a bad attitude, it will work against you. You
don't say "the officer lied.- It won't be believed.
You can say that the officcr "erred," or "was
mistaken." These nrc all methods of presenting
your winning defense. Remember, the method in
which you present your defensc to DHO does make
a difference.4J1
Often times stafflie, fabricate stories and
evidence for some reason. By acting professional,
and rising above their petty behavior, you may not
win yOW" disciplinary hearing, but a negative
behavior would work against you if you took yOW"
incident to coW"t. By providing prison staff with
nothing to point their rmger at, and say, "see, he
was rude, obnoxious and out of line dw-ing the
hearing, he is obviously guilty." Even though guilty
or not., the perception is an important consideration
at all presentations ofany kind. Let the prison staff
remain kings of Ule petty things they accuse
-Prisoners ofbcing.
420
See the chapter about appeals, (Appeals
to DHO, etc) for more infimnation and the
chapter, Writing YOW" Appeal.
421
Sec the chapter Legal Basics & Court
Options, for more specific language when things
look like they are really going against you.

.......

Chapter 18 - WRITING YOUR DEFENSE - SAMPLES

79

18 - WRITING YOUR DEFENSE - SAMPLES
The ability to put your thoughts on paper
is easy for some, and very hard for others. If you
are ODe of the "very hard" group, don't worry.
WheD you write yow' defense rather than speak it,
a hearing officer cannot come back in his written
decision and soy something that was not in your
written defense. It is not that you Deed to write,
but with the posture of the courts, you have to have
your case clearer than in the recent past.
Read Chapter 21 for more discussion of
writing defenses and appeals where more detail is
given.
Writing Structure

Yau only need to present the following 4
things as the basis for your defense:
1. Facts
2. Logic (theory)
3. Conclusions reached by applying logic
to facts.
4. Policy. low or rules that support either
your logic, your conclusions, or both.
Writing your defense is easier than you
might think. Write it out on paper before doing
your fmal copy. Typing your dcfense is thc best
method. If you are short on time before going to
your hearing, or don't know how to type, it is OK to
present a handwritten defense. However, anything
handwrillen is hardcr to read, even if your
handwriting is beautiful. By presenting a written
defense, no one can soy you said something which
you really didn't say. This happens too, too often.
Always keep a carbon copy for yourself ifyou need
to reference it later for an appeal.
TIul:e basic writing rules to follow will
lead you down the path to success:
1) Keep your statement short. simple and
to the point. In UDC, due process is
followed much less in comparison to
DHO. Your response can be shorter and
more direct. Review your statement after
your ftrSt drafting to see how it sounds to
others. Do your sentences reflect a less
dramatic structure. by playing down any
actual or inferred violation you are
charged with?

2) Keep your defense to One (1)
typewritten page, but on extreme circumstances, no more than two (2)
pages. I have written a six (6) page
defense because I knew I was going to
lose. but I wanted the groundwork laid
for a pending legal action against the
institution for ftxing the hearing. The
quantity of pages in your defense
excludes your written questions to
witnesses. Questions to witnesses
should be kept to three to six (3 - 6)
questions per witness. If you handwrite your defense. ODe typewritten
page is equivalent to two handwritten
pages.
3) Keep your sentences clear and
precise. Try Dot to exceed 20 words
per sentence. Ifyou are trying to make
a point, end the sentence with your
point, rather than start the sentence
with it Nonnally, people remember
the end of the sentence rather than the
beginning. For example your point is
''you did not start the ftght" which you
are charged with. Remember - Keep
all sentences direct, and as clearly
stated as possible

After being provoked. I asked him kindly Dot to
start anything. He then jumped. swinging
without provocation.
OR
Although it looked like ftsts were connecting, no
actual contoct was made and no serious potential
existed between us for harm because he was
just doing some sort ofdance.
DON'T

I dido't start the ftght. After he pushed me, I
said, "Why did you do that?", and I told him not
to do it again. Then the ftght started.
I dido't hit him during the ftght where it looked
like ftsts were connecting and person were hit

How to WIN Prison Disciplinary Hearings

80

Here is language on another subject, but
has similar importance in its sentence structure:
It is in my possession, but it would not be
considered contraband because it was is.<med at
another institution where it is approved. That was
issued to me at another institution, and I have a
right to have it, because R&D allowed it in.
Another example for a charge of refusing
an order that is a popular charge among certain
officers:

My failure to obey the officers order was not
intentional, because I honestly did not hear him,
and he made no indications that I was aware of that
I should do something.
DON'T
The officer never gave me an order to do anything.

Stress your point, or objective at the end
ofyour sentence rather than at the beginning. The
impression left with the reader is more effective.
Don't make your language sound forceful; be polite
and non-threatening. The difference, between
"telling" someone and "asking" someone, will
make a big effect on the influence ofyour statement
when you're the one with the Incident Report.

Your Written Statement - Make It Easy to
Undentand
These sections match similar leltered
sections marked on a sample slatement provided at
the end of this section.

Sedlon
a) Heading: Put the basic infonnation at the
heading of your l'lage. If the page gets
lost by UDC or DHO, they will know
who)t belongs to, and what Incidenl
Report it is connccted with. For example,
head your page as shown at the top of the
sample Statement.
b) Code Violation: Under the heading, you want
to stale the code number violation and
initiate your defense by either "Admit" or
"Deny." Sometimes you may want to
admit the allegation, but give the special
circumstances for the incident. See
section h) on the sample Statement.

c) Evidence (optional): List all written evidence
you intend on presenting in your
defense, and list each item separately.
Supply a photocopy of the evidence,
clearly marked as "Exhibit 1",2, etc.
Never give up your only copies of
evidence.
They may disappear.
Supply a copy, rather than the only
original or copy you have, you staple
this evidence to your wriuen defense
on the back in order, so the hearing
officer can't say "I won't consider this,
it's not an issue:' By listing your
evidence in your written defense, and
attaching a copy, you force him to
consider it. If he still refuses to
consider your evidence, you have
grounds for appeal by alleging "Staff
Failed to Follow Proper Evidentiary
Procedure" when evidence was not
considered.
This is a Fifth
Amendment violation of your
protected Constitutional Rights.
d) Defense Statement: Open your written
defense with a short paragraph in
defense of your plea for "Admit" or
"Denied'" and point out the holes in
the Incident Report. This paragraph
should be about three to five
sentences. These sentences can be as
creative, in style, as you like, but they
should also be factual. You can allege
something, but it should not be
considered FACT in the way you
phrao;e it. For example, you receive a
"shot" for a code 206 ("Making a
threat or sexual proposal to another")
because you told another inmate,
"Every dog has his day." Don't laugh,
I've seen these shots and seen them
stick, and they were lost on appeaJ
because the defense was not presenled
properly. Assuming 100 people are
witnesses to your comment, then write
or structure the paragraph in a similar
fashion to that on the sample
Statement.
e) Issues: Separate your defense issues and
address each of them individually in a
numbered paragraph, ending the short
paragraph with the point you are trying
to make. For our example, we will use
the code 206 violation in section e),
but now listed as points of Defense
Issues - on the sample Statement

Chapler 18 • WRITING YOUR DEFENSE - SAMPLES
1)

SwnmllIY: Close your wriuen defense with
another short swnmary of the evidence,
and the lack of evidence against you.
This should be a shorter, simple summary
version of your opening paragraph in
section c) above. Then you close with
your wishes, or request for relief.

g) Names & Witnesses: List your witnesses in a

way to clearly identitY each and every
one. See the short list on your sample
Statement. at the very end. Another page
will list these witnesses with the
questions to be asked ofeach person. See
Figures I & 2.

WRI!r'1'EN RESPONSE to ODC or (Pre-Bearing)

FROM: John Holms #01 234-567

INCIDENT REPORT DATE:

1/31/92

PAGE: 1
Alleged Violation:
Code 403 ("Smoking where prohibited")
Charge: Denied
STATEMENT:
The incident Report is in error because it fails to
describe the important parts of evidence. Your records show
that I don't smoke, and I have never smoked. Since it was 10
degrees above Zero outside (where I was at the time), my breath
steamed the air, and it could have looked like smoke, which is
a mistake.
ISSUES:
1) I don't smoke, and no staff has ever seen me with a
cigarette in my hand. This Incident Report does not say that
the writer saw any cigarette in my hand or anywhere near me.
2) I have never bought cigarettes from the commissary.
3) I was outside, and it was 10 degrees above Zero at
that time. The writer of the incident report was mistaken, for
only steam was coming from my mouth. It was very cold.
4) The writer of the Incident Report was in another
building, about 50 yards away. He could not have been able to
be cert~in about any of the facts as stated.

SUMMARY:
Since no evidence exists to support the writers claim
which is certainly subject to review, he didn't see correctly.
He didn't claim to have smelled any smoke upon approaching me.
When he approached me, a cigarette butt was on the ground, but
the writer never says that he saw me throw it there. I also
have never purchased cigarettes, and my medical record show
that I choose NOT to smoke. Nor do I have a history of doing
so. This Incident Report should be expunged.

Figure 1, Sample ofa Basic or Prehearing Defense

81

82

How to WIN Prison Disciplinan' Hearings

WRITTEN RESPONSE to UDC or DHO
FROM: (your name & number) INCIDENT REPORT #: (write in if a # is
used)
INCIDENT REPORT DATE: (date ot Incident) PAGE: (number)
Alleged Violation: Code 206 - Denied (or Admit, whatever
applies)
RESPONSE to INCIDENT REPORT:
The basis for a "threat" is non-existent and purely
distinguishable between mere uttered words of the context of
our environment. The officer is wrong when he alleges I made a
threat by saying. "every dog has its' day". A communication
showing a present determination or intent to injure, presently
or in the future is not shown. My language in this incident,
was just "normal" prison rhetoric and was said in a
"non-threatening" manner. The belief that it does, is guessing
and fails to support any violation.
ISSUES:
1)
The comment I made to the other inmate was
non-threatening and unfounded as a threat and was not in the
context of a threat, but mere political argument.
2)
The actual violation as it is described in the
regulations, supports my position, since it does not describe
the actual incident. Therefore, there is no code 206 violation
- for no factual basis exists. [see 28 eFR 5 541.13 (table
3)
The dictionary defines a "Threat" as: "the declaration of
the intention to cause harm: an indication of probable
trouble". Speaking words cannot be understood as a threat if
the probability of it (trouble) happening to the receiver of
the words is NOT mentally unsettled by such language according to Blacks' Law Dictionary. Therefore, no probability
of trouble existed. If no probability existed, then the
likelihood of actual harm coming to this person as a result of
my comment is unfounded.
4)
I never said anything directly, that implied a threat: or
said that I would do any-thing that would result in the other
person coming to any harm. Making a comment about "ALL of our
impending future" is not a threat, nor is it a cormnent about
his puppy.
5)
The incident report fails to provide any indication of
"intent" to harm
SUMMARY:

No verbal threats of any kind
probability was demonstrated in the
harm mayor would come to the other
supports my position. This incident

were given by myself No
incident Report, that any
person. Even the dictionary
report should be expunged.

WITNESSES & Written Questions for Witnesses:
1. Lt. Jones
2. Officer Capps (writer of I/R)
3. Inmate - Peter Pan
4. Inmate - Sig Froid
Figure 2, Sample Basic Written Defense to Final Hearing (Add case cites where they apply)

Chapter 18 - WRITING YOUR DEFENSE - SAMPLES
to DBd u
February 25, 1994

rtRI~rEN RESPONSE

Date:
Allan Parmelee, 04239424
Incident Report , 189507-2
Rehearing on DHO decision
Incident Date:
11/27/93
, 0189507.
Page 1
Alleged Violation:
Code
- 1# 399
Evidence:
Exhibit #
Description
1.
Memorandum written by Duffy, dated 11/29/93
2.
Investigation Report (part III), by Camp, dated 11/29/03
3.
Affidavit by stephen
, dated 11/17/94, (mental Health companion)
4.
A & 0 Manual for FMC Rochester, See Attachment B
5.
Incident Report written by Duffy on 11/27/93, delivered Nov.28,1993 by
Lt. Moore.
6.
Disciplinary Hearing officer CDHO) Report #189507 (4-pages).
7.
Regional Administrative Remedy Appeal (BP-I0) 2-pages)
of decision for
#189507
8.
Region's Response to BP-I0 Appeal of. DHO decision for #189507 (Index
#58671)
Response to Incident Report:
Based on the incident report, and on the lack of factual basis, its
recent modifications and the evidence provided, NO actual or probable
disruption was displayed that supports a violation but shown "NORMAL"
conditions and behavior in any segregation unit. The incident report also
does not state in any place, where the institution was actually disrupted
beyond "normal" conditions. I further state as follows:
1.
This new revised incident report for a code - 399 violation, compared to
its original incident report (See: Exhibit 5) is contradictory, and shows
areas falsely represented. The revised incident report, for a code - 399
violation, delivered on February 20, 1994, says the writer, wrote this on
November 27, 1994, at 6:20pm. Exhibit 5, the original incident report was
written by the same writer on November 27, 1994 at 7:30pm. So why was this
incident report for a code - 399 violation being heard months after the fact,
written allegedly ONE hour and ten minutes after the original incident report.
See: Exhibit 5.
2.
DHO heard Exhibit 5, (the original incident report) according to Exhibit
6, (DHO findings), and a rendered decision. After Parmelee wrote an appeal to
DHO decision, showing DHO misfeasance, (See Exhibit 7), the Region ordered a
new hearing on the original charge.
(See: Exhibit 8). Then on or about
February 20, 1994, the writer, Officer Duffy wrote a new incident report
changing the violation from the original code - 199 to a code - 399 violation.
He then raised a new but moot issue of "most like refusing an order." Duffy
back-dated this code - 399 incident report to November 27, 1993, 6:20pm, thus
making the incident report fraudulent.
3.
Lt. Murphy was also with the fraudulent representation of delivery of
the amended incident report for a code - 399 violation by claiming he
delivered it to Parmelee as described in box 14. Upon testimony from Lt.
Murphy, DHO wi~l discover that actually Officer Johnson delivered the incident
report to Parmelee. Exhibit; 2. says camp delivered the incident report or,
Lt. Murphy in Exhibit 5.
4.
Exhibit 1, makes no allegations of factual disruption, as the new code 399 incident report alleges. Actually, Duffy, in the second paragraph says,
"I think," claims he thinks ox predicts action of self-harm, etc. might happen
but failed to provide any historical evidence to support his unbased theories'
DUffy, not even a mental health professional, interjecting his opinion with
nothing to back it up, I must object to its consideration.
In exhibit 3, a
mental health companion states, his eight (8) months of work with Halston
clearly disputes Duffy's allegation.
From:
Re:

Sample 3: example (Actual Defense, The name have been changed to protect the ."not yet convicted" but the
facts arc actual)

412

83

84

From:
RE:

How to WIN Prison Disciplinary Hearings
Allan Parmelee, 04239424
Rehearing on DHO Decision
written response to DHO.

Date:
February 25, 1994
Incident Report # 189507-2
Incident Date:
11/27/93
Page 2

5.
Based on the face value of the incident report, and if, DHO says it is
correct and that the incident report is true and an honest representation of
the facts, then why was this incident report written on 11/27/93, 6:20pm, a
full hour and ten minutes before exhibit 5, according to the corresponding box
12. This code - 399 charge and its peripheral allegations are moot and
untimely pursuant to 28 CFR § 541.11 (Table 2). The 24-hours and 3-days has
long expired. Also, the new allegation, being the last sentence, and "(most
like refusing an order)" is also moot and untimely filed. It should not be
considered in this hearing.
6.
The incident report states he heard Parmelee say to Halston, "stand up",
"sit down", & etc. So what is unusual about heckling in segregation? Exhibit
1 states Halston heckled, saying things much worse than the writer claims
Parmelee said. The writer of the incident report only wrote myself and
another Inmates (who the other person was transferred prior to a hearing), an
incident report and not Halston. Duffy never did anything or said anything to
Halston to quiet him. Neither did Lt. Murphy do anything to quiet Halston as
demonstrated by his testimony, if called.
7.
Exhibit 3, and a Memorandum written to the investigating officer, Camp,
and another Memo written by an assumed Doctor used in the original hearing,
calls Halston a mental health patient. Exhibit 3 says Halston acted as
described in exhibit 1 for at least eight (8) months during the time he had
worked with Halston. So why did Duffy and Lt. Murphy allow him to remain in
the General Population if he was so fragile, according to their paperwork
generated. Exhibit 2, section 25, states the investigation was suspended
pending consultation with attorney per Lt. Murphy. No explanation exists for
this hesitation to precede with the matter of exhibit 5, because they know the
incident report lacked even the slightest foundation and was seriously
questionable from a liability aspect. Exhibit 1, was only written, along with
the other memo's after speaking with the institution attorney, and a
conference on "how to make the incident report stick." They all had full
knowledge and knew its foundation was weak, if not non-existent, and where
worried.
In consideration of the facts, the evidence, and policy, this incident
report should be expunged since it is based on conjecture & guessing, and
"could happen" scenarios. The probability is not shown and only further
allegations is based on someone not trained or skilled in mental health
patients or circumstances. This person, being a mental health patient & if he
was so unstable, first shouldn't be in general popUlation, especially for the
extended time he was. But his medical history according to a mental health
companion, clearly does not say he would or had harmed himself in any manner.
So again, is this incident. report based on guessing and possibilities, or
fact as it should have been.
without ~ny actual events the officer could point his finger at to
describe how the "institution was disrupted", he fails to meet the burden of
minimum requirements required by Procedural Due Process. The officers memo
and the other memos were written several days after the incident report was
written because, after speaking with the institution attorney, as described in
exhibit 2, they decided to attempt to "cover their butts", and write memos.
Therefore, this incident report should be expunged, because no factual
evidence exists to support itself, without of course, guessing and conjecture.
The facts I provide and the activity of Parmelee and Halston are nothing but
"normal" activity of any prison under the circumstances, and no disruption was
demonstrated. Furthermore, the modification of the incident report to "most
like refusing an order" is also contradicted by exhibit(s) 1 & 5. The oral
correct possibility with this incident report is that it be expunged.

Chapter) 8 - WRITING YOUR DEFENSE - SAMPLES

Date:
From:
RE:

Allan Parmelee, 04239424
Rehearing on DHO Decision
written response to DHO.
Witnesses)

8S

February 25, 1994
Incident Report # 189507-2
Incident Date:
11/27/93
Page 3 (Questions to

Witnesses
(as allowed by 28 CFR § 541.17(c»
1. Officer Duffy
4. steve Whiner
7. Inmate Johns
2. Lt. Murphy
5. Peter Pan
8. Inmate Davids
3. Officer Johnson
6. Inmate Whitehall
9. Inmate
Carton
These inmates have already left the institution and because of the long
time delay in this hearing, they are unavailable to be present, thus
prejudicing Parmelee in his defense. There is not a waiver or a statement
from them.
Questions:
1.

Murphy, Lieutenant
a)
On the date of this incident report on November 27, 1993, in
a memo you wrote you claim to have said something to the effect
"it takes some type of person to say something like that." What
type of person's do you think are in segregation who choose
to speak to other inmates?
b)
If Parmelee actions were disruptive, why did you not say so,
instead of the comment you made?
c)

Why did you tell Officer Duffy to write the incident report?

d)
Do inmates, under "NORMAL" prison conditions, and even in
segregation heckle and/or speak to each other on occasion, using
harsh or abusive language to a person unfamiliar with a prison
segregation unit?
e)
Segregation, where this incident allegedly happened is a
general population unit. If you have unstable mental health
persons who are really a threat to others and/or himself, why was
he not in the mental health seclusion instead of being left
in general population for over a week?
f)
With Halston calling others around him "hymi spick," "dead
body fucker," "killer," "baby fucker,"
etc, would you not
suspect that he would be expected to get some heckling in
return?
What evidence do you have that Halston was directly reacting
anything Parmelee might have said to him? Actually, wasn't
Halston being quite when you said what you said to Parmelee in
paragraph I above?
Questions for Witnesses

to

(in Writing) :

If you call witnesses·u , you will have chosen their reliability and what
you intend on asking. As previously mentioned, DHO mayor may not call the
witnesses you reques~2.. DHO denial may be justified or it may not which is
usually incorrect on DHO part. If you are found guilty and the witness could
have cleared you of wrong doing if they had appeared, your due process rights

423

The chapter, StaffRepresenlatives and Witnesses.

424

28 CFR § 54 J.l7 (c).

How to WIN Prison Disciplinary Hearings

86

4u

have been violated. This point needs to be raised on your appeal
The legal
due process minimums apply, and are covered under a Civil Rights Action if you
can prove wrong doing. usually, DHO will call all the witnesses you request.
Just make their testimony help you by the way you phrase your written
questions.
You may also call as a witness, the person who wrote the incident
report 4:16 but you must allege you need them to "testify to other information
NOT included in the incident report or supporting memorandums."
List your witnesses in order with the brief questions below the appropriate name. Remember, don't ask a question for which you do not already know
the answer. For if you do, you may not have an answer for the response that
you get. It just might hurt your case.
1.

Lt. Jones
a) This hearing is based on an event that happened on November
18, 199341' , where John Jones413 , was written an incident report for
a Code - 206 violation for Making sexual proposals or threats to
another419 • Do you remember this incident? 430
b)
c)

Did you hear Inmate Jones say alleged in the Incident Report?
Did it sound sexual or threatening to you?

d) Did the defendant look angry when the statement was made,
"every dog has his day?"
e)
How can those words be taken as a threat, especially when
normal rhetorical statements to and from other prisoners could be
considered much more harsh?
f)
2.

Would you feel threatened if someone said that to you?

Officer Capps (writer of I/R)
a)
This hearing is based on an event that happened on November
18, 1993, where John Jones, was written an incident report for a
Code - 206 violation for Making sexual proposals or threats to
another. Do you remember this incident?
b)
How was the statement you heard threatening, in anyway (as
you wrote in the Incident Report)?
c)
You don't say in the Incident Report, how the statement was
sexual?
d) Since nothing was shown by the defendants' actions as
threatening or sexual, is this Incident Report based on
conjecture, or fact? Are you guessing, and if not, how can
you be sure?

425

Also see the chapler, the Last Resort: if this happens frequently, and is done just to prejudice your hearing or
the staffdoesn't think you deserve adequate representation.
28 eFR § 541.17(c) "An inmate has the right to submit names of requested witnesses, have them called, and
present docwnents on the inmate's behalf. The reporting officer and other adverse witnesses need not be called IF their
knowledge ofthe events are adequately summarized. DHO may request written statements from some witnesses."
426

427

Specifically, give the date and approximate time ofday.

428

Insert your name.

429

Place what you were charged with here. For example: Code· 312 violation for Refusing an Order.

430

This statement should begin each set questions to each witness explaining why they are present. and to refresh
their memo!)' as to the events taken place a month or so ago.

Chapler 18 - WRITING YOUR DEFENSE
- SAMPLES
c

Defenses Samples for Popular Incident
Reports

The following are a few examples to
give you an idea where to start your defense
strategy. Every incident report is different.
You will need to expand your idea into a full,
written defense.

I. 404 - Using Abusive orObscel/e
!AI/guage:
For example, you get an Incident
Report for saying "fuck you." According to
the dictionary, "obscene" means that what you
said was "offensive to morality or decency~
indecent~ lewd~ or disgusting. "Abusive,"
means that what you said was "insulting or
used insulting language, wrong, improper,
etc. Your defense should list all the terms
that are similar to those you have heard from
the staff, and others like them. You need to
compare your language to "nonnal" words
used in your enviromnent that are considered
"nonnal" in prison. This is important.
because the context in which the words you
used were merely to be expected under the
conditions ofany prison enviromnent. This
defense is assuming you are admitting making
the conunent. Usually, a 312 - Incident
Report is written for Insolence to Staff.
to

to.

2. 300 -Indecel/t Exposure:
You get an Incident Report for
"'mooning' an officer when he looked into
your window." Defend again with a
defmition: "indecent" meaning "offensive to
good taste or propriety~ unbecoming~
unseemly." Staff !Jave written Incident
Reports for this. But, we all have been 'strip
searched', 'spread the cheeks', 'lift the sack',
and etc. I realize this may appear to be a joke,
bUl it is not. The defense could be: "I was on
the toilet, dropped the toilet paper, and
scooted across the floor for it"; or "I show him
my butt all the time at his request. but since I
am trying to abide by the rules, I thought I
would save him from asking."
3. 307 - Refusing aI/ Order:
The Officer told you to do
something. and for some reason he believes
that you didn't. Possible Defenses: a) You
did do it. but he just didn't see you. (Be prepared to bring witnesses or show it has been

87

donc.) b) You never heard him say anything:
your radio was on and when you failed lo
respond, and he did nothing to make sure you
heard him. Thus by failure to make sW'c you
heard him, he indirectly withdrew his order by
his lack of action. c) The staffnever gave any
order. (be prepared to call witnesses). d)
The way he gave the order, the language and
grammar the staff used to give the order was
unclear. (Be prepared to use the Incidcnt
Report's description ofevents or witnesses to
support this position), e) I didn't know he
was talking to me. (Be ready to give a
description ofevents - why it should be
believed that he was talking to someonc else,
or that he didn't use your name, etc.).
4. 3 J0 - UI/excused Ahsel/ce fro1ll Work or
AI/V Assigl/ment:
You don't show up for an
appointment, work, or miss a call-out-work,
etc., for some reason. Defense: a) You were
not informed ofthe appointment; b) You went
to the wrong place for you appointment
because you didn't know where to go, and the
staffwhom you asked, told you wrong. or
didn't know, or you didn't understand him~ c)
You slept in because you don't have an alarm
clock, because you don't have enough money.
(Hopefully, you woo't have $500.00 on your
account at the time). You don't want other
prisoners waking you up because you are
afraid they might hurt you ifthey knew how
deeply you sleep~ or the guard didn't wake
you up like he is supposed to, since you were
on the wake-up list.

5. 3/2 - b,soJellce to Staff: (see: ## I, 404 Charge)
You get an Incident Report for
saying "The police are fueked up." The
dictionlU)' defmes "Insolence" as "being
boldly rude, or saying words that shock the
conscience" as distinguished from other
"normal" words given the environment and
lone of voice they were said in. Defense: a) 1
was talking to another person about a TV
program~ b) I was oot even aware staffwere
present My "First Amendment Rights" ofthe
U.S. Constitution protect my thoughts and
conversations with others, since they were not
directed at anyone specific, especially the
staff, and the staff failed to provide evidence
that I was speaking about him or any other

88

How to WIN Prison Disciplinary Hearings

staff in particular: c) The words were merely
"nonnnl" talk, not oficnding the moralily of
the staff in any way, nor does he claim that I
was.

ti, 313 - Lying 10 S,aff:
So some angry Staff is with the
mistaken understanding you lied to them, The
dictionary dermes "Lying" as "1- a false
statement made with deliberate intent to
deceive; or 2- the manner, position, or
direction in which something lies, to be
situated" Defense: a) The Incident Report
does not say which type (dictionary definition)
of lying, #I or #2 is referred to, therefore we
don't know (based on the staff's description)
whether it is a physical location ofsomething
or an intentional attempt ofdeception. Guilt
cannot be decided by guessing. b) They
misquoted what my intentions where because
1dido't fully understand the question, and they
dido't give me a chance to clarify myself if 1
had misunderstood. c) The question they
asked wasn't clear, and I answered what 1
thought was said, No intention to deceive was
demonstrated or shown in the evidence to
support this incident.
7. 316 - Being in an UnaUlllorized Area:
You are charged with being in an

area, the main floor, or a section of the
compound that is closed, Defense: a)
Nonnally, the floor, section, area is open until
I2:00am (or other time), it was 5 minutes
before closing, and the TV's were still on.
When the floor nOlmall.v clo~ TV' .'I are
turned offand an announcement is given that
the floor is closed. This was not done
according to "nonnal"' expected routine of
PI'OCedures. b) The Staffcontinued doing
what they were doing until they were done
because they realized it was unimportant then
c) It wasn't commonly made known to me, or
to others, whicll this was an "unauthorized
area," making it an unknown situation to me,
and therefore 1wasn't out of bounds or an
area that wan not plainly marked as out of
bounds.
8. 321 -Inlerrering wi/II CoulIl:
You get the shot for this charge for
the second time in a month. The dictionary
defines "interfering" as "to disturb; hinder, to
enter into, or take part with others to obstruct
actions ofan opposing player in an illegal
way." Defense: a) The staffwas not
hindered or obstructed in any way definable as

described in the Incident Report, because they
continued as they wcrc doing without
intclTUption. h) Nonnally, at the time
suggested on the Incident Report, the count is
done. Often we are unable to hear ifcount is
clear or not, thus creating confusion by the
Staff's inability to definitcly let all know the
current status of the count. c) I honestly
thought the count had cleared and dido't
realize it Was still in progress. d) 1dido't
realize what time it was because I am unable
to afford a watch (don't have $500,00 in your
account), and was delayed by.Sla1T(give
name, or description, ifknown),
9, 203 - T/wealenillg allolher wil" bodily

/lann or onv olher offense:

You get a "shot" for threatening
another person, OK guys, bring out the
dictionary again. Even Blacks Law
Dictionary offers substantial basis for
dismissing your incident report. Defense: a)
The communicated intent to inflict physical or
other harm on any person or on property did
not exist based on the statements made. The
burden ofcommunication ofan effectual or
intended threat must be an intention to injure
another or his property by some unlawful act
(Slale v Schweppe; 237 N.W,2d 609,6(5) A
"threat" to be effected must have intention or
determination to inflict punishment, loss or
pain on another, or to injure his property by
commission of some unlawful act. (U.S. v
DOll/0I1g, 60 F Supp 235,236) Also, for a
"threat" to be intended. a menace ofsuch
nature and extent to unsettle the mind of the
person on whom the threat is directed, and to
take away from his acts that free and voluntary
action, Is the alleged "threat" serious, as
distinguished from words uttered as mere
political argument, idle talk or jest. In
delennining if the threat was intended, the
context and probability must be considered.

Checking Your Written Defense
After your draft is completed, proof
the document (proof: a lenn that means "to
read the document to figure out if and what
changes are needed"), Look for errors in
spelling and grammar, smooth out rough areas
making it easy to read and understand; cut out
excess words that don't add to the meaning.
Then type, or write, it again. Always keep a
copy for your own records, Clear and precise
sentences and questions will get you better
results, Your presentation may be even good

Chnpter 18 - WRITING YOUR DEFENSE - SAMPLES
enough to beat the Incident Report without the
calling ofllny witnesses. It docs happen
sometimes. Remember, Keep It Simple!
Re-Hearings After Appeal

UDC or DHO may send the incident
report back for further investigation or to
clarifY errors shown in the report. Sometimes
an incident report is written with additional
charges or allegations the second time. The
Region or Central Office may also send your
incident report back for a re-hearing rather
than dismissing the action after you have
appealed. Make sure the disciplinary hearing
stnff hold to the appellate authorities
directions, and re-hear the issues that where
ordered. Was a re-hearing ordered on the
original charge or a new charge? Often,
prisons staffwill amend the charges and
attempt a new attack at you.
In your defense, it would be worth
considering using these older or previous
incident reports as evidence for yourself:
I.
The new issues are moot
and cannot be brought up now
against you because they are
untimely according to the time
limitation table in 28 CFR §
541.11 4J1 •
2.
If the new incident report is
aeew'ate and the old incident report
is not, what makes us sure the new
version is not the wrong or incorrect
version, and the older "more
correct?"
In your written defense, attach a
copy4J1 ofthe previous incident report
properly marked to match the list ofEvidence
on the front ofyour written defense. OJ Then
make compaJisons between the two incident
reports trying to reduce the credibility of the
writing staff. Supply these in writing and with
copies attached to your written defense
forcing their admission as evidence. Some
hearing officer try to forget about the previous
431

See: Table - 2, in Appendix A.

432

Attach copies, not originals, just in
case you never see the paperwork again. Get
photo-copies, and mark them "Exhibit I·, 2, ,
etc. NEVER GIVE UP YOUR ORIGINAL
PAPERWORK.
433

See: Sample Defense # 3, in the
chapter Writing Your Defense.

89

attempts by the staffto complete a simple
form, even though they did it wrong but won't
admit it
Ifyou lose the hearing, you have
now properly prepared the groundwork for
your winning appeal by following these
simple procedures. The Region may order a
new hearing, giving you a chance to get
written statements from others you wish,
hopefully while you are NOT in segregation.
Statements you get from other
prisoners should be in Affidavit format if
possible. Give the new hearing officer
photocopies, stapled to your written delense.
Otherwise DHO may just say, "I won't
consider these," and give them back. Make it
a nice package so your Procedural Due
Process Rights are clearly in violation when
they do this. If you don't have copies, ask
stafffor copies from your Central Inmate File.
You have the right to review your Central
Inmate file once every thirty days in the BOP.
Affidavits can be drafted without the
need of a notary as long as the meet the
requirements in 28 U.S.C. § 1746 where the
United States Congress saw a possible
problem might exists so they provided lor
specific language allowing for documents to
not be notarized as long as they met the
following guidelines:
Wherever, under any law of
the United States or under any rule,
regulation, order, or requirement
made pursuant to law, any matter is
required or permitted to be
supported. evidenced, established, or
proved by the sworn declaration,
verification, certificate, statement,
oath, or affidavit, in writing of the
person making the same (other than
a deposition, or an oath ofoffice, or
an oath required to be taken before a
specified official other than a notary
public), such matler may, with like
force and effect, be supported.
evidenced, established, or proved by
the unsworn declaration. certificate,
verification, or statement, in writing
of such person which is subscribed
by him, as true under penalty of
peJjUlj', and dated, in substantially
the following fonn:
(l) If executed without the

United States: "I declare (or

certitY, verilY, or state)
under penalty ofpeJjUlj'

How to WIN Prison Disciplinary Hearings

90

under the laws of the
United States ofAmerica
thol the foregoing is true
and correct. Executed on
(date). (Signature)".
(2) If executed within the

United States, its
territories, possessions, or
conunonwealths: "I declare
(or certify, verify, or !>tate)
under penalty of perjury
that the foregoing is true
and correct. Executed on
(date). (Signature)". 28
U.S.C. § 1746.
.

A Sample Affidavit should look like the following:

STATE OF [insert nome ofstale affiant is in))
) ss

COUNTY OF [insert county affiant is in!

AFFIDAVII of Ijnsert!l!l!11e OfJ!C!llOD making statement]

)

I, Allan Pannelee, being duly sworn, deposes and says:
I. That I am an outside recreation worker and was present on the field on 2/14/94,°4 at

3:00pm during what staffcalled an altercation between two other persons known as

and

4)5

2. That I witnessed the incident of an alleged fight on this date.
3. The two person!> I know were friends and just playing around and didn't hit the other and
were not angry at the other.
I declare under penalty of perjury that the foregoing is true and correct to the best ofmy
knowledge and I hove personal knowledge and can testify if colled to my personal knowledge
regarding to the enclosed information.

Name & Number
Signed this _ _day of __ 199_.
4M

Your Printed Name & Signature

434

Describe the date and time ofyour pre!ience.

435

Describe where you where, and who you saw by name, or physical description if you don't know their name.

436

At this stage, you don't need a notary.

....

Chapter 19 - APPEALS to UDC (pre or minor hearings)

91

19 - APPEALS to UDC (pre or minor bearings)(BOP)

State procedures vmy. Some stales
only allow 24 hours to file an appeal. In WA,
yoW" appeal goes only as high as the warden.
N. Y., MI and OH have system hearing officers.
You are advised to request an extension of time
to file your appeal immediately, at the end if the
disciplinmy hearing. Check yoW" local state
rules, and become familiar with their
requirements.
On Februmy 5, 1996, the Federal
Bureau ofPrisons adopted a new regulations
changing the time limits in 28 CFR § 540, 542
and 545 to file appeals, responses and
administrative remedies.
Even though these time limits change
sometimes from one year to the next, check the
current time limitations for your institution. The
Federal System allows 20 days, from the date of
the UDC action, to file your appeaI4J7. Now that
20 days includes tbe time it takes the counselor
to post your appeal wriuen on a BP-9, on Sently
(the computer).4J1 You have the right to appeal
as is described inu" and you may seek help from
your staffrep, or other prisoners. ..... an inmate
may obtain assistance in preparation ofhis
complaint or appeal from other inmates or
staff."440. Sometimes the staffwill tell you
437

28 CFR § 542 (Administrative
Remedy Procedures & Time Limits)
(BOP) Program Statement 1330.11
will give you more details on that process
regarding the requirements ofstaffwhen filing a
BP-9. Don't just read the Institution Supplement
the institution publishes to compliment the
Program Statement. Program Statements are
from Washington as Institution Supplements are
from the institution and may be issued in error
(wrong).
439
28 CFR § 542.

438

440

28 CFR § 542.13 (b) (last sentence).

otherwise (because they like to see you
suffer), but they are in error.
If you need an extension oftime to
file your appeal, you may request, in writing,
an extension for that time, from your
counselor (or whoever is designated). Be sure
to ask for enough time to do all your
paperwork, hand it in to your counselor, being
sure to allow time enough for him to post it to
Sently. You get BP-9's from your counselor.
If your BP-9 appeal is denied, you
may file a BP-I 0 and have it at the Region
within 20-days. If denied, you may file a BPII to Washington within 30 days. Extensions
for time to file these forms, may also be
granted for valid reasons to the appropriate
office. Read Chapter 20 for more
discussion ofwriting defenses and appeals
where more detail is given.
The 1996 modifications to 28 CFR §
542.15 are especially important to the new
deadlines you must meet on filing appeals. If
yoW" appeal is rejected by tbe stafffor any
reason, be sure to consider appealing that
decision as outlined in 28 CFR § 542.15(c).

How to WIN Prison Disciplinary Hearings

92

20 - APPEALS to DUO (major offenses)(BOP)
When this was wrillen lhe federal system
allowed up to 30 days to file an appeal after you
receive your wriUen copy of the disciplinary
panels decision. DHO nonnally has 10 days to
give you a copy of their decision and their
reasons.'" Sometimes it takes a Iitlle longer than
10 days to get your copy of the disciplinary
hearing oOiccrs [mdings. Don't wol1}' about
losing your appeal righls, but start complaining, in
writing and always be prepared for litigation.
Your 30 days does not start Wltil you receive your
decision from DHO...1 It will be dated with the
dale on which you receive it.
Even though these dates change
sometimes from one year to lhe next, check the
current time limitations for your institution.
First. you must request a BP-W
(administrative appeal fonn) from your coWlselor,
explaining it is for your DHO decision appeal.
You do not have to go through a BP-9
(administrative complaint that goes to the warden)
as you do with a UDC action, since DHO is
designated from the Region or Central Office").
If you need an extension of time to file
your appeal, write to the Region in time for them
to receive it (about 5 days), giving them your
reason for the extra time you want. It will be
granted, if your reason is valid. I don't mean to
say. "I just have not had the time." Your reason
must be reasonable and valid. For example; "I
have been WlOble to use the records that I need to
prepare my appeal," or "I need to do legal
research into procedures used and the law library
is only open on a limited basis." This, or
something similar, would he acceptable to them.
Then ask for enough time. It is beller to ask for
too much time than too liule. If you think you
need 15 days more, ask for 25 days. They will
most likely giVe you that, and a little extra for
good cause. You can also ask that they tell the
institution to give you what you need for your
appeal.

441

28 CFR § 541.17(g).

442

28 CFR § 541.19.

Your 20 days, includes mailing time to
the Regional office. 444 To be safe, allow about
5 working days for mailing. It is your
responsibility to mail it, not your coWlselors. If
you arc not happy with the Regions' or Central
Offices' decision, then, after receiving the
Regions' response, you may appeal that
decision within 30 days -to Washington. See
the chapter, Writing Your Appeal. for more
infonnation on preparing your defense and your
reason for an appeal.
Always send your appeals legal mail
or certified mail so it is logged as to the date
you mailed it ifprison authorities claim the time
has expired to file an appeal. Failure to appeal
could lead to procedurally defaulting your claim
in their favor.
Read Chapter 21 for more discussion
of writing defenses and appeals where more
detail is given.

NOTICE OF CHANGE: As of
passing by the BOP into law in the
2 Q 1996,,28 CFR § 541 has been
amended. Also see 60 FR 54922,
Final Effective Date 07/00/96
The changes implement revisions
provided in the Violent Crime Control and Law
Enforcement Act of 1994 which requires
inmates sentenced for crimes of violence to
"display exemplary compliance" with institution
regulation~ in order to earn good conduct Time.
(GCT). When this revision is finally published,
we will publish our 7th Edition oflhis manual.
Based on my review of a preliminary
copy, if you are convicted of a crime
categorized as 0 "violent crime" sanctions will
be more severe than those convicted of «nonviolent crime.c;. We will be in touch with the
ACLU for comment on this issue.
For more infonnation contact: Roy
Nanovac, Rules Administrator, Department of
Justice, Bureau of Prisons, HOLC Room 754,
320 First St. NW, DC 20534. (202) 5146655.

443

28 CFR § 54 I.I9 and 28 CFR § 542
(Administrative Remedy Procedures).

28 CFR § 542. I4 (processing time
limits).

Chapter 21- WRITING YOUR DEFENSE OR HEARING APPEAL

93

21- WRITING YOUR STATE DEFENSE OR HEARING APPEAL

Good Writing Is Persuasive Writing
Good writing requires effort at two levels:
(l) overall stnlctW"e and (2) sentences and

paragraphs. A written defense or appeal has a
formal structW"e and its nature as a persuasive
documenl Stn1ctW"e is important as it applies to
each part of the wriuen defense or appeal.
This section deals with sentences and
paragraphs. Too often, legal writing is to writing
as legal reasoning is to reasoning: artificial,
strained, and impenetrable to the uninitiated.
Evetyone who are placed in a position to write a
defense, motion or appeal would benefit from
reading anyone, or more, ofa dozen good books on
writing.4CS Opinions by careful prose stylists also
are worthy of study.~ Among other writing books
such as Shakespeare as an example, these books
provide more complete guidance than can be given
here.
There are some rules, however. First. get
away from the fonn letter and from the samples and
445

See, e.g, Wilham Stnmk, Jr &
Elwynn B, White, The Elements of Style (3d ed
1979)~ Herbert E. Read. English Prose Style
(1980)~ Richard C. Wydisk, Plain English for
Lawyers (2d ed 1985).
446
Among noteworthy stylists are
Carolyn King and Patrick Higginbotham of the
Fifth Circuit. Stephen Remhardt and Alex
Kozmksi of the Ninth Circuit. and Richard Posner
of the SevenlJT Circuil Other good works on
brief writing include AI1 oftire Appellate Brief,
72 ABAJ 52 (Jan Albert Tate, Jr, Tire AI1 of
Brief-W,.iting, What a Judge Wants to Read,
ABA Section ofLitigation. The Litigation Manual
229 (1983), Christopher H. Hoving, Tire 1986),
Eugene Gressman, Winning on Appeal: The
Shalls and Shall Nots ofEffective Criminal
Advocacy, I Crim Just 10 (Winter 1987)~ Harry
Pregerson, Tire Seven Sins ofAppellale Brief
Writing and Otlrer Transgressions, 34 UCLA L
Rev 431 (1986)(exceUent advice on
brief-writing and valuable guide to appellate
practice in the Ninth Circuit).

pleadings found in many law books, or even this
manual. Drafting a written defense or appeal
brief is a bookish undertake that requires
translating that outline-or even a mental picture
of events-into sentence structure designed to
capture past events for a reader and hold that
reader's interesl
Second. to quote the best advice in an
excellent book on writing, "Omit needless
words," according to Wilham Strunk, Jr &
E1wynn B. White, Tire Elemenl3 ofStyle (3d ed
1979); Use simple declarative sentences.
Experts on language tell us that when meaning
is embedded in complex phrasing, the reader or
hearer is quickly losl4C7 Consider this sentence:
"The officer testified Ilrat he took a sample of
the breath of the defendant to test for tire
presence of traces offumes of alcohol." Evety
italicized word identifies a connective word or
words that embed, or mask, communication.
When a modifier is used with a preposition,
instead ofbeing placed with the word modified,
the sentence is weakened: "alcohol fumes"
instead of "fwnes of alcohol." Whenever a
connective must be used, strike out its excess
baggage: "the presence of," in the example, but
also "in terms or." "the fact that." and other
offenders. Go through the draft looking for
remnants of bad grammar, wordy sentences
words only dying lawyers say: "The learned
hearing officer ordered and decreed , . ," One
verb is enough to power that sentence,
particularly if the baggage-word learned is
jettisoned or removed quickly,
Third, speak as directly to the
audience (the hearing officer) as you are talking
to them as a proCessional co-worker. Often,
custom does not permit the defender, in writing
a defends or appeal brief, to say "you" and
"your" in referring to the intended audience. It
is '"this court's teaching" in a prior case and not
447

The same issue is raised by
police-citizen confrontations. See Michael E,
Tigar, Crime Oil Camera, Litig 24 (Fall
1982).

94

How to WIN Prison Disciplinnn' Hearings

''your teaching." But gel as close as good manners
will allow. "This court's holding in ..... is much
better than "It was held in...."
Fourth, speak of real people. nol of
categories. The plnintiJf, defendant. the accused and
witnesses have names. Usc them. A busy hearing
officer. appeals review committee, judge or law
clerk might forget whether a wimess was called by
one side or the other, or might even get the
accuseJ(s) and defendant confused in the midst of a
densely written argument. One may include an
occasional subtle reminder by repeating a phrase
such as "the defendant, Mr. Smith." By the way, all
people in adminislrative hearings and judicial
proceedings have titles, such as Mr., Ms., and so
on; they are not simply surnames such as just
"Smith". This is particularly important in showing
a human personality in a criminal defendant.
Fifth, avoid the passive voice. Write
sentences in which people are doing things. This is
a more general statement of rule 3. "It was testified
that Inmate Smith failed 10 inspect the coupling
before the day shift reported for work" is twice
weakened by "II was testified that." First, the
passive phrase docs not tell u.c; who testified, which
may be important. Second, the sentence may be a
missed opportunity to tell the reader something
important about Mr. Smith's error. The politically
correct term of an inmate is "Prisoner." If a
governmental agency investigated and concluded
that Mr. Smith erred. the sentence should reflect
that. If Mr. Smith is the defending a charge of
"failw-e to perform his job" or contributory
negligence is an issue, and if the defender is
arguing a staffstatement that might read. "Several
wimesses testified, and the hearing officer could
well conclude, that Mr. Smith failed to inspect the
coupling before the day shift reported for work,
refusing to perform his job." You will want to tum
this around in a written defense or appeal such as:
During the normal performance of my duties, I did
not notice the defective coupling, that appears to
have been that way for months, therefore.
reasonable evjdence indicating that I refused to
perform my job does not exist.
Si>.1h, get rid ofjargon. Most people have
cars. They drive to meet people or to kecp
appointments. Yet when required to write a brief
about govenunent agents making an arrest, they
insist that the police responded to the scene. exited
their vehicles, and effected arrests. Would it be
better to write: "On January 14, 1987, John Doe
opened his front door. On the steps stood five
govenunent agents, armed with everything except
a search warrant... By careful editing, every stilted
lawyer word can be removed. It sometimes helps to

read the draft out loud because most people and

lawyers usc less jargon in ordinary speech.
Seventh. put away the sugar bowl, the
saccharine pills. the purple crayon, the cliche
mill, and the metaphor gun. Sickly sweet,
sophomoric, cliclJe.ridden writing, studded with
inapt metaphors, is unpersuasive. The quiet
force of facts, arrayed in active declarative
sentences, will bear the argwnent along.
Eighth, watch out for humor and
sarcasm. The only people entitled to be funny
arc the hearing officers or judges, and everyone
will laugh at theirjokes. The advocates' attempt
at hwnor may come off as rough or forced. Be
eloquent, polite. but dignified.
Finally, although it has been said
before. be accurate. This canon is only partly
one ofstyle. The deadliest retort. from opponent
or hearing officer. is that a fact is misstated or
exaggerated,4CI or that an authority is misquoted
or-worse yet-has been overruled. Credibility
lost by such carelessness is not easily regained,
ifat all.

Appellant's or Petitioner's Opening
Brief-Selecting Issues and Order of
Presentation
Usually, the final selection of issues on
appeal is not made until after the issues have
been combed and digested and backed up with
supporting undisputable facts. In comparison to
federal appeals. why should this case be one of
the less than 2()OAJ to result in reversal? If the
you can answer that question in one or two
brief, convincing paragraphs, he or she is well
on the way to identiJYing and ordering the issues
in the opening written defense or appeal brief.
Unless the you are on your own
writing your defense or appeal, an open-ended
discussion with another person familiar with the
rules is the best means to make these decisions.
Even if you are on your own. search out
someone with whom to rehearse the issues,
perhaps a law clerk or another jail house
lawyer.
Defense issues consisting of short
single sentences should be written called a
memorandum before writing your final defense
448

Another reason for being
careful in stating facts is illustrated by City
Nail Bank v United Slates, 907 F2d 536 (5th
Cir 1990) (court ofappeals may. in its
discfCtion. treat statements in briefs as
binding judicial admissions).

Chapter 21- WRITING YOUR DEFENSE OR HEARING APPEAL
or appeal, outlining the facts and possible legal
theories. The theories should be broken down os:
(I) legal errors, (2) factual errors, and (3)
procedural errors. The memorandum should notc
whether any proposed claims of error were not
raised and presclVed in the disciplinary hearing.
Most people ore afraid ofcutting down the
number of issues presented on an appeal. They are
afraid ofmissing something that may be found to be
important later. This is a valid fear, but attempt to
make judgments based on legal cases, laws, rules
or statutes. It cannot be repeated too often: this
written defense or appeal may win or lose the case.
You do not enhance the chances of winning by
throwing in marginal issues. Stick to the relevant
issues.
It is more difficult to gain the needed
distance from the hearing process and evaluate the
merits and importance of issues for defense when
you are the person directly involved. Being in a
disciplinary hearing is exhilarating and enClVating.
Hearing battles that loom largest in memory are
those that filled one with a particular sense of
triumph or defeat at the time. These will not be the
battles that necessarily produce the best issues for
appeal, or the ones that replay well-or even
interestingly-on the cold record. Too, successful
disciplinary defendants cannot survive without
huge egos. Wounds to the disciplinary defendants
ego ore not the stuff ofwhich successful appeals are
made. Theoretically, only unjustified wounds to
your liberty or pocketbook are fair game in the
court ofappeals.
One is not free to compromise by raising
issues in a kind oflaundry list in the written defense
or appeal brief, without discussion. An issue
abruptly and uninformatively mentioned in a
defense is not preserved for appeal, and the review
committee or the courts are frcc to disregard it. 449
Another major theme of discussion must be the
increased judicial reliance upon the harmless error
rule in administrative, civil and criminal cases.
Deference is the watchword of review committee's
and appellate.judges with busy dockets. Review
committees and appellate judges look for a way to
find the district judge or hearing officer
fundamentally righl They strain to disregard errors
that did not deprive a party ofa ftmdamentally fair
trial and would not if corrected on remand or retrial
reshape the outcome. As noted elsewhere in this
449

Judge Posner's remark in

Ullited Slales v Dunkel, 927 F2d 955, 956 (7th
Cir 1991), affd, 986 F2d 1425 (7th Cir 1993),

that "[J]udges are not like pigs, hunting for
truftles buried in briefs." This is worth
remembering· for more than one reason.

95

manual, this rule ofdeference yields at times in
compelling cases. But it must dominate the
discussion of issues for the defense or appellate
brief.
The rule of deference looks to the
merits. For this reason, one should pay close
attention to any issue of fact worthy ofdefense
and appellate consideration. For example,
suppose the issues are sufficiency of the
evidence, an error of law in the witness
questioning or reliability of evidence, and a
procedural point concerning "intent to break a
rule." While the general rule is that evidence,
witnesses, questioning and intent are considered
on a whole, eveJY review committee and
appellate court knows the importance of
properly considering witnesses, evidence and
the elements of the claims and defenses
involved in the action. A witness or evidence
error, if preselVed by a proper objection. is
therefore a good candidate for top billing before
a review committee in the appellate brief.
However, even with such an issue, the
sufficiency point should have pride of place if
you can, without exaggeration and after careful
review of the record, argue persuasively that the
decision or judgment is not supported by the
evidence, if considered properly. If the
sufficiency point is marginal or doubtful, then
the legal argwnent should go first and you
should, in the summary of argument and in
introducing the sufficiency point, note that the
error of law misdirected the trier of facl The
evidence may not be insufficient to support the
judgment, but you must argue that the legal
error could have made a difference in a factual
dispute that was fairly debatable.
A fmal canon of choice is: give
preference to issues that decide the whole case
rather than pieces of it While there is no
jurisdictional bar to the court considering an
issue that does not result in reversal of the entin'
decision of judgment, there are strong
prudential reasons for leading with the larger
issues. First, review committees as do courts of
appeals have discretion to refuse review of
nondispositive' issues
under
certain
circumstances. Second, the attention span of
review committees, judges and law clerks is no
different, on the average, from that ofordinary
mortals. To hold the reader's attention, a
written defense or appeal brief must start
strong.

96

How to WIN Prison Disciplinary Hcarings

Writing a Defense Argument
This will be the last important part of the
defense or appeal briefyou writc. If the headings on
sections of the defense or appeal brief. which are
reproduced in the, are informative, and if the issues
presented are well written, then one may ask why
the necessity of a summary of argument be
presented. You may choose not to bother writing
one.
However, if the defense or appeal brief
contains one or more long and complex arguments,
a swnmary can be useful and should be included.
The summary should be no more than 5 to 7% of
the length ofthe wriuen defense arguments, that is,
if the argument portion of the brief consumes 2
pages. the swmnary should be no more than one or
two paragraphs. This is a challenge, not to be
avoided by simply repeating the issues presented or
the headings in the defense or appeal brief.
The summary of argument represents a
unique opportunity to give an overview of the
entire action or case and of some or all of the
issues.
When appealing a disciplinary hearings
wriuen decision, your statement of an issue might
be: "Whether the disciplinary being officer's proof,
which was at best ambiguous and vague, was
insufficient to suslain a verdict of guihy." You
should say, "Whether, indulging all inferences
favorable to a finding of guilt in this alcohol
manufaclwing action should not be affirmed, given
that no direct evidence that the defendant
participated in the manufacture of alcohol and was
not associated with the principals in the
manufacturing the officers thought they discovered.
An interesting iUustration, in U"iled Sioies v Cook,
783 F2d 1207 (5th Cir), affd on reconsideration,
793 F2d 734 (5th Cir 1986), in which the court of
appeals first reversed then changed its mind on
rehearing and afftrrned a conviction, basing the
change upon a very different total vicw of the
evidence.

Only 3 reasons exist in the federal
system fhr appealing your UDC or DBO
decision. lbe [!TOunds are similar for state
appeals. You must remember these reasons
when you are drafting your appeaI450• They are
as follows:
I.
UDCIDHO (the disciplinary
committee) didn't follow their
respective rules governing hearings,
as is described in this manual, and in
theirs.C$I
2. UDCIDHO (the disciplinary
committee) did not base their
(respective) decision on the greater
weight of the evidence, in the
presence ofconflicting evidence.
3. The sanetions were extreme and
not appropriate for the violation that
resulted in a conviction4J!. Good
Conduct Time (GCT) is often
calculated wrong when given to DHO
(the disciplinary conuniUee). For New
Law persolls, the policy says that
DHO (the disciplinary committee)
can only take what time you have in
your physical year. they CANNOT
take vested GCT time4S3 • Parole or
old law persons can get slammed
harder by taking unreasonable
amounts ofgood time.
Too often, appeals are writtcn but the
basic rules of writing are not followed. I have
gone into them in length, in the chapter Writing
Your Defense. This area here, is a little
different, and a lot the same.
Good Writing Rules:

a) Keep it simple, to the point. and
conclusive.

Federal Administrative Appeals
Check the new rules for federal prisoners
under 28 CFR § 542.15-Appeals. Now. they are
trying to limit the number of pages you can write
your appeal on to the approved appeal form, and
one letter size page. But then, they are also stating
that if an issues or defense is not raised in a lower
appeal, it cannot be raised in a higher appeal. J
would remember all the recomendations in this
mouat, and ifyou absolutely must make your appeal
longer than 1-1/2 pages, than do so. Just don't miss
and issue to raise on appeal.

4S0

28 CFR § 541.19.

4S1

28 CFR § 541.15 & § 541.17.

4S2

See: sanctions 28 CFR § 541.13
(table 3-6), also in Appendix A, shown only
in summary, next to the violation codes. See
the CFR for more detail ON federal prisoners
rights.
4SJ

See: 28 CFR § 541.13 (table
4)( I)(b.l), also in Appendix A without the
additional text shown that is in the CFR.

Chapter 21- WRITING YOUR DEFENSE OR HEARING APPEAL

97

b)

Remain focused on the relevant
issues. Don't wllte about things
that will not help your case.
Doing that will detract from
what you are asking the reader
to do for you.
c) Do not dwell on Wlimportant issues.
d) Try to keep your appeal under 2
pages, not including evidence.
e) Label your evidence, ifmore than one
( I) item exists. Mark the
number clearly, on the top righthand comer: EXHIBIT #_
t) Keep your facts organized. Have the
progress ofevents, flow as they
happened. through both your
appeal writing and your
evidence.
Severol ways exist to write an appeal.
Here is one method to help keep the issues, and
evidence, clear and separated. Start with an
opening statement, swnmarizing how the UDC or
DHO erred in the hearing. This should be about 23 sentences at the most. An example of such an
appeal could be as follows:

Simple Appeal
[caption) (name, number, date, etc)
"I asked for several witnesses to be called to my OHO hearing.
These witnesses could have changed the weight of the evidence
against me, for a code 224 Violation. If they had been called, it
would have been revealed that I did not commit the prohibited
act."
Evidence:
1.0HO decision; dated 2/13/92; OHO officer,H.Bullwinkle Exhibit #1
2.Written statements by the witnesses, which were not called
Exhibits #2
(2 are attached)
3.Medical Reports related to this incident
(3 pages attached)
Exhibit #3
Issues:
1.
DHO did not consider all evidence by refusing to call the
witnesses requested. They would have testified to the material in
the attached statements.
(See: Exhibit 2, of 2 pages)
2.
OHO did not follow the rules as proscribed by Program Statement 5270.7,
"Inmate Discipline and Special Housing," and 28 CFR
§ 541.17 (c) regarding the calling of witnesses, and the "Greater
weight of the Evidence."
3.
The sanctions were extreme and more severe, since this is my
first Incident Report. The approved sanctions allowed are only 15
days, not the 45 that I received.
Conclusion:
DHO refused to call the witnesses, without having just
cause. He failed to review all the evidence put before him.

The

How to WIN Prison Disciplinarv Hearings

98

sanctions imposed were extreme, and not considered "normal" under
the circumstances.
I request the evidence be reviewed, the witnesses be
interviewed, and the written questions (which I submitted)
be answered. I also request the sanctions be reduced
accordingly, with strong consideration to expunge this
Incident Report.

Complex Appeal
Regional Appeal CBP-lOl

Date: April 29, 1995
John Martin(aka J.M.)
Incident Report Date(s): 4/4/95
# 03003-089
Alleged Violation(s): 102-A & 329 Pages 1-9
Introduction

On 3/30/95, a Detention Order was written to John Martin
based on "pending investigation." On April, 4, 1995, at 1:30pm,
an incident report was issued to John Martin ("J.M."), register #
02801-030, for violationls), pursuant to 28 CFR § 541.13, Table 3,
code 102-A; (escape from escort; escape from a secure institution,
or administrative institution) "A", attempted, pursuant to 28 CFR
§ 541.13(b); and on 3/30/95, a second incident report was issued
to John Martin for violation pursuant to 28 CFR § 541.13, Table 3,
code 329 (destroying or altering or damaging government property
or property of another person, valued less than $100.00) out of
the same conduct from the April 4, 1994 incident report. Both
incident reports were written on April 4, 1995 and delivered that
evening to Mr. Martin.
John Martin appeals on the grounds that (1) DHO did not
follow their respective rules governing hearings; and,
(2) DHO
did not base their decision on the greater weight of the evidence,
in the presence of conflicting evidence; pursuant to 28 CFR
§541.19.
I Argument

Proper notice of the charges or
were not provided Mr. Martin pursuant
Administrative Detention Order.
In the Administrative Detention
proved as to the content or basis for
II

basis of the investigation
to the rules in the
Order, proper notice was not
the pending investigation.

Argument

In violation of 28 CFR § 541.14(b) (1), prison staff
continued questioning Mr. Martin relative to pending allegations
of attempted escape knowing the FBI and Marshal's Service were
called to question Mr. Martin.
Mr. Martin was questioned by numerous staff prior to being
informed of (1) his rights, (2) the reason for the investigation,
(3) the possible penalty he faced through the investigation by the
government for attempted escape.
III

Argument

Pursuant to 28 CFR § 541.11, Table 2 and 28 CFR § 541.15(a),
(time limits in the disciplinary process), both incident reports
were written more than 24-hours after staff became aware of the
alleged rules violation without documenting or with justification
being in the record and were thus waived by staff to file the
complaints against Mr. Martin.

Chapter 21- WRITING YOUR DEFENSE OR HEARING APPEAL

99

The code-102-A violation is alleged to have happened on
3/29/95, and staff became aware of the incident on 3/29/95. A
disciplinary report was not written until 4/4/95, more than 6 days
later. The code-329 violation is alleged to have happened on a
date prior to 3/30/95, and staff became aware on of the incident
on 3/30/95, but the incident report was not written until 4/4/95,
more than 5 days later.
According to the prison rules and regulations incorporated
into statutes of the C.F.R.;
(a) "Staff shall give each inmate charged with
violation of Bureau rules a written copy of the
charge(s) against the inmate, ordinarily within 24
hours of the time staff became aware of the incident."
In wolf~J4, the court held staff had to give a prisoner a
copy of the infraction within the time required by statute,
regulation or on good cause noted in the record. According to the
record, no "good cause" for the delay in providing Mr. Martin the
incident report as required by statute.~J In fact, prison staff
adopted a "relaxed attitude" regardi~g the merits of the
allegations and the timely filing of relative paperwork with
intentional disregard for Mr. Martins legal rights and established
rules and statutes.
IV
Argument
The charge for a code 329 violation fails to iden~ify any
person in box 11 of doing anything. The term used is "you ••• ";
In conjunction with an interview with Mr. Bob Harvey, FBI
and Mr. Elmer, Visger, USM. John Martin is not identified in the
body of the description as to any activities he mayor may not
have committed. The incident report writer fails to clearly
indicate the identity of "you". The burden of the evidence and
proper procedural descriptions is lacking and relies on
speculation.
V
Argument
The ~n~mum requirements of due process in violation of 28
CFR §541.17(c), and 42 U.S.C. §1983 in the DHO hearing by not
calling the witnesses as requested on the UDC hearing forms
without justification is lacking.
On 4/6/96, John Martin went before UDC for a preliminary
hearing. At that time, he requested witnesses, but was unable at
that time to prOVide names or descriptions of prospective
witnesses. No further follow up was made by any staff member to
obtain names or descriptions of the witnesses. Mr. Martin made an
objection at the hearing, but it was ignored by DHO to not calling
his requested witnesses. The Supreme Court held that if prison
officials refuse to call the requested witnesses, the burden is on
them to explain their decision, at least in a limited manner~.
Statutes may require that the reasons be documented at the time of
the hearing4S7 •
VI Argument
The minimum disclosure of evidence requirements of due
process in violation of 42 U.S.C. §1983 was not provided in the
referenced documents contained in the DHO report, page 2, (d) as
requested by Mr. Martin in memo's written to staff requesting

Wolff v McDollllell, 418 U.S. 539.94 S Cl. 2963,41 LEd 2d 935 (1974).
455

28 CFR § 541.11, Table 2~ 28 CFR § 541.15(a).
456

Paille v Real. 471 U.S. 491.495, 105 S.Cl. 2192,85 LEd 2d 553 (1985).

457
People ex rei Vega Smith, 66 NY2d 130, 485 NE2d 997, 495 NYS2d 332 (1985); McGill"is v
Stevells, 543 P2d 1221 (Alaska 1975).

100

How to WIN Prison Disciplinary Hearings

copies of written memoranda intended to be used against Mr. Martin
at the DHO hearing.
.
Copies of documents in hearings are required to be prov~ded
to Mr. Martin. In Scarpa v pont~~, the court agreed that each
person has the right to review, in time to prepare for a hearing,
normally 24-hours before, access to the evidence unless a
"penological" interest is stated on the record. During the Scarpa
disciplinary hearing, due process is violated within the scope of
his Constitutional rights. In Youn~" a prisoner was accused of
writing a threatening letter to his cellmate. The court decided
that the prison staff violated Young's due process rights even
though he was not present at the disciplinary hearing, and the
threatening letter was not produced.
In Chavis v Row~~ in the 7th Circuit has analyzed the issue
and found an existence to due process rights and the prisoners'
receiving evidence staff intend on using against them. The need
to understand if a prisoner is wronged, also comparing Brady v
Maryland and Harris v MacDonald.~1
V:II

Argument

The ~n~mum requirements of due process in violation of 28
CFR §541.17(f), and 42 U.S.C. §1983 are not met in the DHO finding
with the burden of "some evidence" in the presence of
contradicting evidence.
Without a confidential informant, comment or other "some
evidence" indication of "escape", the finding by DHO is in
error.«z In the DHO report, Sect. V, para 1, the DHO states that
" •.• Lt. Atterbury ... determined that on 3-29-95, J.M. was making
plans to escape .... " without any cooberating information or
supporting evidence other than mere speculation and hypothetical
theorizing. In fact, other staff make no mention of a change in
behavior, but in fact, on the record indicate "no change in
behavior." (DHO Rept. Sect V, para 4).
The foundation is established it is commonly known by staff
that inmates will routinely make, modify, repair, and alter
clothes within the institution. Since street clothes are allowed
on the compound, need for a pair of pants made from a warm wool
blanket would also not be considered unusual in the cold winters
of Minnesota and the time of year made.
DHO makes note of its "pre-disposed opinion" as to'Mr.
Martins' guilt. DHO goes on to state that in light of a
presumption by Lt Atterbury of an intent to escape, Mr. Martin is
required to prove his "proof of innocence". (DHO report, Sect V,
para 6, sent 1).
Gloves are given out by persons requesting them from staff,
from the landscaping department and with other prisoner
connections working in the laundry department for a fee. Common
practice among inmates is to trade and distribute "better clothing
and accessories" than normally provided through the Bureau
channels without any intent or thought of escape.
The statement attached to the DHO report of Bruce Parnin,
correctional Counselor, supports John Martin's claim of innocence.
458

Scarpa v Ponle, 638 F Supp 1019 (D Mass 1986).

459

Young v Kalil', 926 F2d 1396 (3rd Cir (991).

460
Chavis v Rowe, 643 F2d 1281 (7th Cir), cel1 denied. 555 F Supp 137 (NO ILL 1982) and Mendoza v Miller.
779 F2d 1287 (7th Cir 1985). cel1 Jellied, 476 US 1142 (1986).

Brady VMary/and. 373 US 83, 83 S Ct 1194. 16LEd 215 (1963) compare with HalTis vMacDona/d. 555 F
Supp 137 (NO ILL 1982), lJnd Mendoza v Mille,., 779 F2d 1287 (7th Cir 1985). cerl denied. 476 US 1142 (1986).

461

462

WolUvMcDom,ell, 418 U.S. 539.94 S Ct. 2963,41 LEd 2d 935 (1974).

Chaplet· 21- WRITING YOUR DEFENSE OR HEARING APPEAL

101

(staff Rep. Statement). The counselor informed OHO that "it was
not uncommon, but standard procedure for inmates to have the
sewing machine in their room". Mr. Parnin goes on to say, " ... it
is always in someone's room.". Mr. Parnin also informs OHO that
"It's normal for inmates to alter clothing, and it is allowed."
He also noted "normal behavior" of Mr Martin, and he thinks escape
plans were unrealistic and not being considered.
The evidence relied upon as required by statute has not been
met by OHO for a finding of guilt. Courts have held that "proof
which a reasonable mind may accept as adequate to support the
conclusion or final facts w •
In Corcoran v Smith464 the courts
decided that relying on a written misbehavior report prepared by
a prison staff member was deemed NOT to meet the "evidentiary"
requirement. Lt Atterbury used the argument that "guilt was
indicated and substantially more probable than innocence which OHO
agreed" and was not supported by any "reasonable evidence".
Using the argument in Superintendent v Hill,w as a test in
this case demonstrates a standard as "some evidence" for an
infraction report and finding. Some courts have held "some
evidence" is not proper, and the "preponderance of the evidence"
standard must be used, but later was reversed on the substantive
part446 • The use of the "substantial evidence test" to decide if
the finding by the hearing officer is correct, is a violation of
due process. This assumes that "substantial evidence" is less than
a "preponderance of evidence" and is more than is required for due
process. 467
Several previous court decisions held that Gofrw, was
concluded to accept the proper standard of evidence by a
disciplinary hearing officer must be the "preponderance of the
evidence." and the standard by the court to use in reviewing the
findings of the disciplinary hearing officer is "some evidence."~
The existence in the record of "some evidence" is not
supported without extreme presumptive measures on the part of the
prison staff. Existence of "some evidence" is not shown on the
record without gross speculation.
VIII

Argument

The complaint against Mr. Martin lacks supporting evidence
and "intention" of breaking a rule. Intention directly relates to
the "Standard of Proof Requirements" to justify a finding by OHO.
In the OHO report or any supplied or inferred evidence to
John Martin, existence of any description of "intent" is lacking.
without some "proximate cause or link"between the alleged
improper property in Mr. Martin's room, the presumption of escape

463

Shakur v Coughlin, 182 AD2d 928, 582 NYS22d 302 (1992).

.eM

People ex rei Corcoran v Smith, 105 AD2d 1142, 482 NYS2d 618 (1984).

465

Superintendent v Hill, 472 US 445 (1985).

466

GofJv Dailey, 789 F Supp 978 (SO Iowa 1992), afJd ill part, rev'd ill part, 991 F2d 1437 (8th Cir 1993).

467

Strick/and v Beyer, 1990 US Disl LEXIS 2510 (ONJ 1990).
468

id

Woodby v Immigration Selvice, 385 US 276 (l966)~ Wolffv McDonnell, 418 US 539 (1974); Mathews v
Eldridge, 424 US 319 (1976); Superimendellt v Hill, 472 US 445 (1985); Brown v Fauver, 819 F2d 395 (3rd Cir
1987); U.S. ex rei Miller v Twomey, 479 F2d 701 (7th Cir 1973), cert denied, 414 US 1146 (1974); Engel v Wendl,
921 F2d 148 (8th Cir 1991).

469

102

How to WIN Prison Disciplinary Hearings

is merely conjecture. In defining "intention" the courts have
held a proximate connection must exist as follows :470
Determination to act in a certain way or to do a
certain thing. Meaning; will; purpose; design.
"Intention" when used with reference to the filing
of an administrative complaint, means the sense of the
words contained therein. When used with the reference
to civil and criminal responsible [as this is the
case), a person who contemplates any result, as not
likely to follow from a deliberate act of his own, may
be said to intend that result, whether he desires it
or not.
Intent: and motive should not be confused.
Motive
is what prompts a person to act, or fail to act.
Intent refers only to the state of mind with which the
act is done or omitted.
General Intent: in criminal law, the intent to do
that which the law prohibits. It is not necessary for
the prosecution to prove t~at the defendant intended
the precise harm or the precise result which happened.
Also, in applying the Four Corners Rule, the intention of
parties, especially that of an agreeing person, is to be
considered from the action as a whole and not from isolated parts
thereof."'.
The record of the DHO proceeding fails to show or
demonstrate ANY intention.
I:IX Arqument
Mr. Martin was issued two incident reports in violation of
his double jeopardy rights out of the same conduct (1) escape from
escort; escape from a secure institution, or administrative
institution - attempted and (2) destroying or altering or
damaging government property or property of another person, valued
less than $100.00.
The Fifth Amendment of the U.S. constitution has not been
waived even in consideration of Mr. Martin's conviction. In
Massachusetts, Mr. Forte was being sanctioned for assaulting a
guard. The court decided on March 8, 1995 in Commonwealth v Casper
Forte, No. 97548
[unpublished as this is written). Mr. Forte was charge with
assaulting a guard, among other things. He was charge in a
disciplinary hearing and later indicted in court for event from
the same actions. He was found guilty and sanctioned by the goon
court, and the prosecuted in the state court. Mr. Forte moved the
court to dismiss based on Double Jeopardy, and U.S. v Halper,4n an d
won. The argument of the government is that an administrative
finding of gUilt and subsequent punishment is purely
administrative and does not constitute punishment, but
consideration to a "grievous loss" was not considered. In U.S. v
Austin4n , the issue deals with forfeiture of property and Austin
prevailed. But the court held that regardless of the value of
property, or the cost to the government, forfeiture was
punishment. In analysis, since segregation and money damages is

470

Willen v UllitedStates. 70 U.S. App. D.C. 316,106 F2d 837, 840; ReillhardvlAwrellce Warehouse Co.• 41
Cal App2d 741, 107 P2d 501. 504; .\~ate v Gram, 26 N.C App 554, 217 S.E.2d 3,5; State v Evalls, 219 Kan 515.548
P2d 772. 777.
471

Davis vAndl'ews, Tex.Civ.App., 361 S.W.2d419, 423.

472

U.S. v Halper, 490 U.S. 435,109 S.Cl. 1892,104 L.Ed2d487(1989); U.S. vAllstin,
U.S. .113 S.Ct
2801,125 L.Ed2d488 (1993).
473

U.s. vAustill. _ U.S._. 113 S.Ct 2801, 125 L.Ed2d 488 (1993).

Chapter 2 I· WRITING YOUR DEFENSE OR HEARING APPEAL

103

constitutionally protected, it would also be considered a
"grievous loss" and subject to a double jeopardy argument and one
charge should have been discharged and not considered by ORO.
Conc1usion

After a de novo review of the ORO decision, and in view of
the obvious gross and defective procedures by the staff, and that
no evidence exists to support the finding of ORO, the incident
reports should be expunged and the record cleared.
Dated:

----------

Respectfully Submitted

John Martin, # 03003-089

End Appeal Sample

Remember, that appeals can be done
in many ways. I only suggest two possible
methods. If you remember to keep it concise
and to the point. and if you have any chance of
winning. you will succeed.
Don't be
disappointed if the Region, central office,
warden or Washington, denies your appeal.
You still have the courts. It is easier than you
might think, if you will just take the time to do
a little reading and research. See: the chapter
Legal Options.

";'"

104

How to WIN Prison Disciplinary Hearings

22 - STAFF RETALIATIONS VIOLATION OF LAW

may also help you with cases by providing
advice and materials that will help you. These
organizations usually have ways of providing
"Diesel Therapy" is not handed out as
some additional service to those prisoners who
easily as many prisoners are lead to helieve.
are willing to do a little more about their
Prison staff onen threaten and try to intimidate
situation than the average prisoner. In other
prisoners with baseless threats of transfers, loss of
words, when you get out in front these people
parole dates or disciplinary infractions. When
will support you all they can.
this happens, write up the threat in a memo by
You should keep in constant contact
summarizing the context of the threat, and send it
with the news media and let them know what
back to him, asking them to confirm or deny your
you are doing and why you are doing il In
understanding of the conversation and that it was
other words, the media want news and what is
correcl Keep copies of these memos because if
you ever need to go to court, they can be used to
happening in prison is news. If you have a
withstand a motion to dimnis.o; or in alternative
working relationship with a couple of reporters
sununary judgement for a claim of retaliation.
the administration will be hesitant to do
If you are filing motions and petitions
anything to you that is really bad because they
know that you will report their actions against
attacking the constitutionality of your conviction
you to the press.
or sentence, you will probably not be harassed by
prison officials for exercising your right to petition
Write members ofCongress and state
the courts. However, if your legal activities are
legislators interested in prison conditions
aimed at improving prison conditions you are in
regularly. They, like the legal organizations and
effect chollenging the authority of prison officials
the pros, will become familiar with you and may
and you may very well be subject to retaliation.
support you if the need arises. Their support
1llereforc, ifyou are serious about being effective,
might be little more than letters to prison
you must consider protecting yourself as you
officiols, but this in itself is a form ofprotection.
work. This will not only help you avoid needless
Prison officials sometimes have a hard time exsuffering, but allows you more time to work:
plaining their actions to these people because
No protection will insure that you will
most ofthem are familiar with the law and legal
not receive retaliation from the prison officials for
standards. The "justifications" prison officials
your legal activities, but there are several ways to
give for their actions sometimes sound irrational
establish minimal protection for yourself. Here
to others.
are some suggestions of ways to protect yourself:
You should consider writing articles
Try to maintain regular correspondence
for some prisoner publications (and regular
with legal organizations that are active in
news media as well). This will familiarize the
prisoners' rights litigation. Let
publie with your Work. and
the people at these organizations
you All receive a lot of
become familiar with You as a
correspondence from in Guards Get Sued &
person. Their recognition ofyou
interested persons who, when
as a jailhouse lawyer iL'iClf gives
the
need arises, won't hesitate
Lose For Retaliation
you a minimum amount of
to
write
the warden and look
Di:con v. Brown, 38 F.3d 379
protection
because
the
into
what
happened to you. If
(8th Cir. 1994)
administration will know you are
you have outside support, you
working closely with these people
have a form of protection.
and will know that ifyou go to the
One of the best
hole for some reason the administration's actions
ways to start protecting yourself is to try to have
will be closely scrutinized. These organizations
all your communication with the administration
RetaUation from Staff:

Chapter 22 - STAFF RETALIATION IS VIOLAnON OF LAW

105

on paper. Ifyou have a complaint put it in writing
done. There are many organizations and
and submit it to the proper official. Draft all
individuals on the outside that are willing to do
correspondence with prison officials formally.
what they can to assist you. No matter how
Send carbon copies to the legal organization you
small others efforts might be. you need to be
are working with, to the congress people you have
able to do your own work.
had regular contact with and to the press people
that you have come to know. This provides the
people outside with a continuing documentaIy of
Things You Cannot be Infracted For
your life and prison conditions. They can see what
Often. when a prisoner auempts to
you are doing virtually every day and if the
ga!her signatures on a petition showing support
administration harasses you they have documented
for some issue, prison staff will infract him. In
accounts of your activities with which to frame
Edward& v W"ite l1J , this is not allowed because
their inquiry.
There are also many political groups
!he prisoners' actions are protected by the First
Amendment and therefore the prison rule is
that may lend you as much support as they can,
and publish some of your articles about prisons.
invalid The court in Sallchez41', held that the
.prisoner could not be infracted or pwUshed for
Work with these people.
requesting a superintendent's hearing and his
Ifyou cannot put your communication in
punishment was in violation of the rule
writing. always make it a point in dealing with the
prohibiting
arbitrary
and
capricious
administration to talk with them in a projessiollal
punishment, or punishment imposed for
way. Conduct yourself as though you were an
retaliation or revenge.
outside legal assistant working for a law finn.
The snouts can't infract prisoners for
Don't ever let yowselfbe provoked. Although you
possessing revolutionary, Communist and
may feel very frustrated. anger will never bring the
radical religious literature. While the cases are
change you wanl DON'T GIVE ANYONE THE
old (a sign ofthe times) they are still good case
LEAST BIT OF "JUSTIFICATION" FOR
low. See: Sastre v McGillllis. 442 F.2d 178
HURTING YOU.
Finally. You and other prisoners
(2nd Cir. 197I)~Morgall v Lavalle. 526 F.2d
interested in doing prisoners' rights litigation
221 (2nd Cir. 1975); Mukmuk v Commissioller
concerning the conditions of your confinement
ofDOC. 529 F.ld 272 (2nd Cir.1976); U.S. Ex
should stick together. When it is possible, and
Rei Larkills v Oswald. 510 F.2d 583 (2nd Cir.
you have to talk with the administration. Take one
1975) and Sczderbaly v Oswald. 341 F. Supp.
of!hese people with you to witness whatever hap571 (SO NY 1972).
pens. Many circumstances will not give you time
The snouts can't infract prisoners for
or opportWlity to do this, but many will. Always
exercising their constitutional rights, whether it
try to have a witness if there is the slightest
is their right of access to the courts or the right
possibility you might be retaliated against. Then
to petition the government. This includes filing
courts have held when prisoners seek judicial
grievances. grievance suits where the plaintiffs
review, prison officials
won are: Wi/dbel-ger v
may not retaliate or
Brackllell, 869 F.2d 1467
them
for
harass
(II th Cir. 1989); Sprouse v
Guard Tries To Set Up Prisoner And
exercising their rights of
Babcock, 870 F.2d 450
Can't Undentand Why The Court
access to the COurts414 •
(8th Cir. 1989)~ Johllsoll"
Won't
Protect Him.
If you conduct
EI
v Schoemehl. 878 F.2d
Jones v Coughlin. 45 F.3d 677 (2nd Cir. 1995)
yowseIf in a professional
1043 (8th Cir. 1989);
way
with
the
Hilles v. Gomez, 853 F.
administration they may
Supp. 329 (NO CAL
come to respect your ability to remain calm and
1994). Those cases involved grievances.
rational. If, after they have retaliated against you,
you persist in filing suits against their retaliation
475
Edwards v While, 501 F Supp 8
and you cause a public inquiry of how they treat
(MD Pa 1979), atrd. 633 Fld 209 (3rd Cir
you. they will respect you even more. They might
1980).
not want to respect you, but they will. It takes
476
time to build up many of protection but it can be
Sallchez v Sm;,", 115 AD2d 285,
474

Smitll v Masclme,.. 899 F2d 949 (10th
Cir 1990).

496 NYS2d 152 (1985); see also, Fra"co v
Kelly, 854 F2d 584 (2d Cir 1988); Cai" v
Lalle, 857 F2d 1139 (7th Cir 1988).

106

How to WIN Prison Disciplinary Hcarings

Franco v Kelley. 854 F.2d 584 (2nd Cir. 1988)
who was infracted for complaining ahoutllrutality
to thc state IG's office.
The snouts can't infract prisoners for
badmouthing them in their outgoing mail. See:
Bressmall v Fan'ie,., 825 F. Supp. 231 (NO IA
1993); Loggills v Delo, 999 F.2d 364 (8th Cir.
1993) and Moody v McNamara. 606 F.2d 621
(5th Cir. 1979), thc snouts were reading the mail
toM~'s girlfriend where he claims the guards
are fucking cats while reading his mail. The
guards infract him. He sued the snouts and won.
The following several articles are
reprinted with permission and as reported in
P,'iSOIJ Legal News.

Infraction
Illegal
Retaliation

When

In

Donald Dixon is a Missouri state
prisoner. He filed suit under 42 U.S.C. § 1983
after a prison guard filed a retaliatory disciplinary
charge against him after he filed a grievance. The
district court granted summary judgment in favor
of the guard because the disciplinlll)' hearings
committee dismissed the infraction and Dixon was
not punished. Thc court held that Dixon could not
establish his retaliation claim without showing
independent injury. The court of appeals for the
eighth circuit reversed and remanded in a brief
opinion.
"In Spro,,,,e v. Bahcock. 870 F.2d 450
(8th Cir. (989), we recogni7.ed the First
Amendment right to petition for redress of
grievances includes redress under established
prison grievance procedwes.... Although the filing
of a false disciplinary charge is not itself
actionable under § 1983, the filing of a
disciplinary charge becomes actionable ifdone in
retaliation for the inmate's filing of a grievance..,
see: Frallco v. Ke/~," 854 F.2d 584, 589-90 (2nd
Cir. 1988) [also see: Cole v Jolmson, 861 F 2d
584 (2d Cir 1985); Sclrere v Engelke, 948 F2d
921 (6th Cir 1991); Mel'ioalher v Coughlill, 879
F2d 1037 (2nd Cir (989); Wolftl v Bales, 707
F2d 935 (6th Cir (983); Gihhs v Hopkills, 10 F3d
373 (6th Cir 1993)] Having presented evidence
that Brown's disciplinary charge was falsc and
made in retaliation for Dixon's grievance against
Brown, Dixon need not show a separate,
independent injury as an clement of his case.
Because the retaliatory filing of a disciplinary
charge strikes at the hcart of an inmate's
constitutional right to seek redres.'l ofgrievances,
the injury to this right inheres in the retaliatory
conduct itsclf.... In short, when retaliatory conduct

is involved. there is no independent injury
requirement" See Dixon v. BI'OWII, 38 F.3d 379
(8th Cir. 1994).

Retaliatory Infraction Ulegal When
Staff Lied•••• Again!
The court of appeals for the second
circuit reaffirmed that infractions in retaliation
for prisoners' exercisc of constitutionally
protected righl~ are unlawful. The court also
noted that administrative dismissal of such
charges do not llar § 1983 actions for damages
resulting from punishment imposed at the
defective hearing. Darnell Jones, a New York
state prisoner, filed an administrative complaint
against a prison guard for confiscating and
destroying his property. The guard's supervisor
threatened to retaliate against Jones. Jones's
cell and that of a neighbor were searched and a
shank was found in the other prisoner's cell.
Jones's complaint alleges that the guards
conspired to lie and stale that they found the
shank in his cell.
Jones was infracted for the weapons
possession. At the ensuing disciplinary hearing
Jones asked that the prisoners in the
neighboring cell be called as witnesses to
confirm that the shank was theirs and not his.
The hearing officer refused this request and
found him guilty of weapons possession and
sentenced him to 120 days of segregation and
the loss of four months good time. Jones
administratively appealed the matter and the
appeal \Vas denied. After Jones had served the
sanction imposed a Prisoners' Legal Services
assistant wrote to the New York DOC official,
Donald Selsl.:y, responsible for administrative
disciplinary appeals pointing out the procedural
defects in the hearing. Selsky reversed his
earlier denial ofJones' appeal and expunged the
infraction from Jones's record.
Jones filed suit under 42 U.S.C. §
1983 claiming that the retaliatory infraction and
conduct of the disciplinary hearing violated his
rights to due process. The district court
dismissed the suit holding that the due process
defects in the hearing were cured by Selsky's
eventual dismissal of the infraction, that Selsky
was absolutely immune from suit for damages
and that the retaliatory infraction claim failed to
state a claim upon which relief could be
. granted. Jones appealed and the court of
appeals for the second circuit reversed and
remanded.
After the district court dismissed the
suit the appeals court decided Walker v Bales,

Chapter 22 - STAFF RETALIATION IS VIOLATION OF LAW

107

23 F.3d 652 (2nd Cir. 1994), holding that if a
Freemoll. See: Frallco v Kelly. 854 F.2d 584,
prisoner was placed in punitive confinement as a
589 (2nd Cir. 1988)."
result of a procedurally detective hearing, his
The appellate court held that the lower
eventual success in an administrative appeal did
court made several errors in disposing of the
not bat a claim under § 1983 for damages
retaliation claim. TIle court held that Jones had
resulting from that confinement. The appeals court
set forth sufficient facts in his complaint to
also decided Youllg v SelsJ..y, 41 F.3d 47 (2nd Cir.
support his retaliation claim. The lower court's
1994), holding that Se/sky, in his role as an
determination was also premature and
appellate hearing officer, was not entitled to
inappropriate on such a scanty record where, as
absolute immunity, though he might be entitled to
in this case, no discovery had been conducted.
qualified immunity. In this case the state conceded
"Even if Jones is unable in discovery to elicit
that these cases were controlling with regards to
direct admissions, his testimony that Armitage
two of Joncs' claims and asked that the appeals
made retaliatory threats, together with evidence
court hold this case in abeyance pending
of the sequence ofevents alleged above would
resolution of petitions for certiori the slate had
easily permit-though obviously not require-a
filed with the U.S. Supreme Court. The appeals
trier of fact to infer that the filing of the false
court declined to do so, noting that "A decision of
behavior report against Jones was an act of
a panel of tltis court is binding unless and until it
retaliation for his earlier complaint against
is ovenuled by the Court ell
Lavarnway.
The
bOllc or by the Supreme
determinations as to
Court."
whether to credit such
Snouts Can't Get Away With RetaUatiDg
TIle district court
testimony and as to
Against Prisoners Who Files Complaints
had dismissed Jones's
what
inference to
Against Them.
retaliation claim holding that
draw
from
the
McCorkle v. Walker. 871 F. Supp. 555 (ND NY
the assertion that false
sequence of events is
1995)
misconduct charges have
within the province of
been filed does not state a
the fact fmder at trial,
not of the court on a motion for SUJ1U1UIJ)'
claim under Freemoll v Rideout, 808 F.2d 949
judgment." The appeals court remanded the
(2nd Cir.1986) and that Jones's retaliation claim
case back to the lower court for further
was "wholly conclusory." TIle lower court held
proceedings. See: Jones v Cough/ill, 45 F.3d
that Jones had no factual basis for his retaliation
677 (2nd Cir. 1995).
claim "other than an adverse disciplinary ruling
decision and its eventual reversal."
The appeals court vaeated this ruling as
Retaliatory Discipline Violates
well. In Freemoll the court held "that a 'prison
Due Process
imnate has no constitutionally guaranteed
A federal district court in New York
immunity from being falsely or wrongly accused
has held that retaliatoIY infractions violate due
ofconduct which may result in tile depravation of
process and that housing an asthmatic prisoner
a protected liberty interest...' we reasoned that the
on an upper tier may
prisoner's due process
violate
the
eighth
rights are protected ifhe is
amendment.
Prison
granted a hearing on the
Guards Get Slanuned By The Court For
officials and detectives are
charges and given an
Ttying To Slom Prisoner With An
also liable when they
opportunity to rebut them."
Illegal Infraction.
interrogate
prisoners
The court noted that as a
Payne v. Axelrod, 871 F. Supp. 1551 (ND NY
and do
concerning
crimes
1995)
factual matter this case was
not provide counsel when
from
distinguishable
requested.
Cyrus
Freemoll because Jones
McCorkle filed suit
was denied the right to call key witnesses in
pursuant to 42 U.S.C. § 1983 claiming that
defense of the charges against him.
New York state prison officials violated his
"Atll1e doctrinal level, we have held that
eighth amendment rights by denying him a
a prisoner has a substantive due process right not
change of undelWC8f for fifteen days; housed
to be subjected to false misconduct charges as
him on an upper tier despite a medical order
retaliation for his exercise of a constitutional right
stating he should be housed on ground floors
such as petitioning the govermnent for redress of
due to asthma; denied a transfer to another
his grievances, and that this right is distinct from
prison despite a Mental Health Office order
Ute procedural due process claim at issue in
stating a transfer would reduce his stress and

108

How to WIN Prison Disciplinary Hearings

that he was exposed to TB while working in the
prison hospital. He also cla~mcd prison. lllTIcials
violated his due process nghts by fihng false
disciplinmy charges against him in retaliation for
complaining about misconduct by guards. The
defendants moved for summary judgment which
the court granted in part and denied in part.
The court held that the denial of a
transfer and clean underwear did not state
constitutional claims even if true. Likewise. there
was no evidence that McCorkle bad been exposed
to m while in the prison infinnary. However. the
court held that McCorkle had stated a claim with
regards to being housed on an upper tier d~s~ite
defendants' knowledge of his astJuna conditIOn.
"It is well known that climbing stairs exposes
some people to serious medical risks." This claim
was set for trial.
McCorkle claimed that a nurse filed false
disciplinary charges against him. claiming that he
bad sought to bribe her to bring drugs into the
prison, after he complained to prison officials that
she was the nurse on duty when another prisoner
almost drowned in the infinnary. He was found
guilty at a prison disciplinary hearing and
sentenced to a year in segregation. "Under
Freemall v. Rideout, 808 F.2d 949. 951-53 (2nd
Cir. 1986).... the filing of allegedly false
disciplinmy charges by state officers would not
violate an inmate's due process rights as long as
he was afforded a fair hearing where he had an
opporttmity to be heard. Freemall, however. does
not apply to situations in which th.ere are
allegations that an inmate's substanbve due
process rights were violated despite the fairness of
the procedure lL'lCd. Grillo v. Coughlill, 31 F.3d
53. 56 (2nd Cir. I994 )~ Lowrallce v. Achtyl, 20
F.3d 529. 537 (2nd Cir. 1994)~ Frallco v. Kelly,
854 F.2d 584 (2nd Cir. )988)." The court denied
the defendants' motion for summary judgment on
this as well.
After the ncar drowning of the prisoner
McCorkle was interrogated hy prison officials and
a homicide detective. There was no claim of any
injury arising from the denial of counsel at the
interrogation. However. the court not~ that
McCorkle hod II right to counsel if the
interrogation was clLc;todial in nature and even if
there was no injury he would be entitled to
nominal damages ifhe prevailed.
The court also refused to dismiss
McCorkle's claims that he had been denied his
right ofaccess to the courts and been assaulted by
a guard. The court dismissed a claim involving the
deprivation of property holding that New York
state law presented an adequate post deprivation

remedy. See: McCorkle v. Walker, 871 F. Supp.
555 (ND NY 1995).

Retaliatory Infractions Illegal For
Filing False Charges
Prison employees are forbiddc,:n from
filing false disciplinary charges aga~t
prisoners in retaliation for prisoner complamts
against other employees. Milton Pa~e. a New
York state prisoner. \vitnessed a pnson guard
set a ftre in a cell and reported this to prison
authorities. Shortly thereafter prison' guards
searched Payne's cell and claimed to have
found a single edge razor blade in his cell. They
infracted Payne for weapons possession. He
was f01md guilty at the hearing.
Pavne filed suit pursuant to 42 U.S.A.
§ 1983 clai~ing that the retaliatory infraction
violated his right to due process. He also
alleged nwnerous due process violations ~s~g
from the disciplinary hearing itself. The district
court dismissed, on the defendants' molion for
summary judgment. all the claims arising from
the hearing.
The court did not dismiss. and set for
trial. the retaliation claims. "Plaintiff's claim
that Officer White framed him in retaliation for
reporting officer Telesky must survive. Under
Freeman v. Rideollt, 808 F.2d 949.951 (2nd
Cir. 1986). the filing of false charges is
nonnally not actionable under Section 1983.
Frallco v. Kelly. 854 F.2d 584. 589 (2nd Cir.
1988). however. held that a prisoner stated a
valid claim against prison guards alleging that
the guardc; falsely accused the prisoner of
insubordination in retaliation for the prisoner's
cooperation with authorities investigating abuse
of inmates. The plaintiff here similarly asserts
interference with his right to petition for redress
of grievances. and thus states a claim.
Furthermore. there is a genuine issue of
material fact as to whether CO White did
retaliate against plaintiff."
The court held that the defendants
were not entitled to qualified immunity on the
retaliation claim because Frallco constituted
well established law at the time the events in
this case arose. Hence they knew or should have
known it was illegal to retaliate against
prisoners who complained of guard misconduct
See: PayI,e v. Axelrod, 871 F. Supp. 1551 (NO
NY 1995).

Chapter 22 - STAFF RETALIATION IS VIOLATION OF LAW

109

violation by a state actor of the guarantees of the
incorporated Bill of Rights, a coW1 need not
make a separate finding that such action 'shocks
A federal district court in Michigan has
the conscience' or is an 'egregious abuse of
held that it is Wllawful for prison officials to
governmental power.' Willful violations of
retaliate against prisoners who complain of
enumerated constitutional guarantees are
misconduct by guards and for prison officials to
constitutional torts and nothing more need be
read legal mail sent to prisoners from the courts.
shown." The court held that Riley's claim that
Those claims were set for trial and a claim that
Kurtz used his government position to limit or
legal mail was "censored" was dismissed because
pWlish his right to petition the government "lies
there were no factual allegations to support it.
near the core of the First Amendment."
Jimmie Riley, a Michigan state prisoner filed
Numerous prison and non-prison retaliation
several complaints against a guard, David Kurtz,
cases are cited which will be useful to anyone
who commiUed various acts of misconduct. Kurtz
litigating this issue.
then fabricated a disciplinmy charge against Riley
The cowt rejected the defendant's
in retaliation for his complaints. Riley filed suit
claim that before a prisoner can prevail on a
contending that this retaliation violated his fU"St
retaliatory iJ:Uraction claim a disciplinary
and fourteenth amendment rights. The .district
committee must have dismissed the infraction.
court denied Kurtz's motion to dismiss or for
While such a standard may be appropriate in
summmy judgment on the retaliation claim.
criminal cases, those proceedings have
The court noted that "Relnliation against
substantial procedural safeguards which prison
the exercise ofFirst Amendment rights is itself a
disciplinary hearings do not have. The court
violation of the First Amendment." Zilicll v.
also expressed concern that such a standard
£OligO, 34 F.3d 359, 364 (6th Cir. 1994). The
would
create
court rejected Kurtz's
WlW8lT8Dted pl'CSSW'C
claim that retaliation by
on bearing officers nol
guards must "shock the
Prison staffmust be sued to learn they cannot
to dismiss disciplinary
conscience" before it is
relnliale against prisoners and get away with
cases. It also noted
actionable. ......Unless a
it. But before suing, write letters, memo's
that federal courts
official
can
prison
and keep prrofyou have complained of
need not defer to the
demonstrate a legitimate
relnliation if possible.
factual fmdings of
penological justification,
Woods v. Smtth, 60 F.Jd 1161 (Sib Cit. 1995)
DOC hearing officers.
he abuses his power ifhe
Riley also
uses his position to
stated
a
claim
infringe upon the First
regarding Kurtz reading his incoming legal mail
Amendment rights of inmates, including their right
because prisoners have a well established right
to petition government officials for a redress of
to exchange confidential mail with the courts.
grievances." The claim that as long as a prisoner
The court denied Kurtz qualified inununity
receives procedural due process protection (which
holding that the law was clearly established that
is of dubious relevance now given the supreme
retaliation
against
prisoners
was
court's recent ruling in Salldill v. COllller his
tmconstitutionalas
was
reading
prisoner's
legal
allegations that guards issued retaliatory
mail from the courts. See: Riley v. Kurtz, 893 F.
infractions .vould fail to state a claim have been
Supp. 709 (ED MI 1995).
rejected in Cole v. Jo1l1130ll, 861 F.2d 943 (6th
Cir. 1988) and Frallco v. Kelley, 854 F.2d 584
No Immunity for Retaliatory
(2nd Cir. 1988). There is some dispute as to the
standard established by Cale. In Wi/Iiams v.
Discipline
S",UII, 717 F. Supp. 523 (WO MI 1989) the coW1
The coW1 of appeals for the ftfth
held that filing disciplinary charges against a
circuit has reaffmned that prison officials who
prisoner who had earlier filed a grievance does not
retaliate against prisoners who exereise their
stale a constitutional claim. In that case a different
constitutional rights are not entitled to qualified
guard infracted the prisoner sixteen days after he
immunity. The court also held that district coW1
filed the grievance. While in this case, like Cale,
orders refusing to dismiss pendent state law
it was the guard complained about who initiated
claims are not cognizable on interlocutory
the disciplinary proceedings.
appeals. Claude Woods, a Louisiana state
The court gives an extensive discussion
prisoner, was pressured by a prison sergeant
to the roots of fourteenth amendment liberty
into bec:omiog an infonnant. He was told that if
interests and concluded that "in fmding a willful
he refused "bad things would happen to him...

Grievance Retaliation Unlawful

110

How to WIN Prison Disciplinary Hearings

Woods wrote to a federal judge who wa~ presiding
over prison litigation and told him of the threats.
He sent a copy of the letter to thc prison worden
and to a prison lieutenant.
Prison officials infracted Woods for
writing the letter, charging him with "defiance."
At a disciplinary hearing Woods was fOWld
"guilly" and sentenced to segregation and other
punisbment. Woods then filed suit pursuant to 42
U.S.C. § 1983 claiming that the infraction was in
retaliation for his having exercised his right of
access to the courts. The defendant.~ moved for
summary judgment which the district court
granted in port and denied in port. The court
denied the defendants qualified immWlity for their
actions and refused to dismiss Woods' pendent
state law claims. The defendants filed an
interlocutory appeal.
The cowt held that in 1990, the events in
this case arose, the law wa~ clearly established in
the fifth circuit that "a prison official may not
retaliate against or horass an inmate for exercising
the right of access to the courts, or for
complaining to a supervisor about a guard's
misconduct." The defendants argued that
prisoners cannot proceed on a retaliatory
disciplinary suit Wlless the underlying infraction
has been terminated in the prisoner's favor,
employing a similar standard as that used in
malicious prosecution suit. The court soWldly
rejected this argument. "Such a requirement
would unfairly tempt corrections officers to
enrobe themselves and their colleagues in what
would be an absolute shield against retaliation
claims. This we will not do, for... 'the court with
which [the inmate] sought contact, and not his
jailer, will detcrmine the merit~ of his claim...'
"We emphasize that our concern is
whether therc was retaliation for the exercise of a
constitutional right, separate and apart form the
apparent validity of the underlying disciplinory
report An action motiva~ed by retaliation for the
exercise of a constitutionally protected right is
actionable even if the act, when taken for a
different reason, might have heen legitimate." The
court agreed with the elcventh and seventh circuits
which have held that "proceedings that are not
otherwise constitutionally deficient may be
invalidated by retaliatory animus." The court cites
numerous rctaliation cases from other circuits
which will be helpful to anyone litigating this type
of issue. Readers will note this ruling was issued
after the supreme court issued ito; ruling in Salldi"
v. COllller [See Appendix A] which significantly
limited prisoncr challenges to disciplinory
hearings. This can be read to indicate that Sa"dill
will have no enCet on retaliatory discipline claims,

or it could be that the issue wasn't raised by the
parties and thus waSll't addressed by the court.
The court cautioned district courts to
carefully scrutinize prison retaliation claims.
"To state a claim of retaliation an inmate must
allege the violation of a specific constitutionol
right and be prepared to establish that but for
the retaliatory motive the complained of
incident, such as the filing of disciplinary
reports as in the case at bar, would not have
occurred. This places a significant burden on
the inmate. Mere conclusory allegations of
retaliation will not withstand a summary
judgment challenge. The inmate must produce
direct evidence of motivation or, the more
probable scenario, 'allege a chronology of
events from which retaliation may plausibly be
inferred.' Although we decline to hold as a
motter of law that a legitimate prison
disciplinory report is an absolute bar to a
retaliation claim, the existence of same,
properly viewed, is probative and potent
SUDUnory judgment evidence, as would be
evidence ofthe number, nature, and disposition
of prior retoliation complaints by the inmate."
The court held it lacked jurisdiction to
hear the defendant's appeoI on the lower court's
refusal to dismiss the pendent state law claims.
The lower court ruling denying defendants
qualified immWlity was affirmed and the case
was remanded to the lower court for triol on the
merits. See: Woods v. Smith, 60 F.3d 1161 (5th
Cir.1995).
[Reprillted with penllis.tiOll from
Prison Legal News]

SelfHelp Legal Sources

III

Self Help Legal Resources
Prison Legal Ncws
Prisoll Legal News is an exceptional monthly
magazine published since 1990 by Washington
State prisoners Paul Wright and Dan Pens. PLN
reports prison related legal issues, reports court
decisions and analysis targeted for the politically
advanced prisoner. PLN's goal is to assist
prisoners and their supporters organize
themselves to have a voice, and be a progressive
force in developing public policy and debate
around issues ofcrime and punislunent. PLN is
a must for all prisoners who care about what is
happening to them. Subscriptions are $12.00
per year from prisoners and $50.00 per year for
others. (money or stamps are accepted) Prison
Legal News, P.O. Box 1684 Lakeworth, FL
33460.
National Lawyers Guild
Prison Law Project
The NLG publishes a bi-monthly newsleUer
called Rites ofPassage. It seeks to inform and
organize jailhouse lawyers and those involved in
the criminal justice system. The PLP is in the
process ofreorganizing itself, publishing a
jailhouse lawyer's manual and more. The NLG
is a progressive association oflawyers and legal
workers. Subscriptions and NLG membership\s
are available to jailhouse lawyers for $7.50 per
year and $10-40 a year for others. National
Lawyers Guild/Prison Law Project. SS8 Capp
St. San Francisco, CA 94110, (4 I5) 285-5067.
National Prison Project
The NPP is the American ClvU Uberties
Union, (ACLU) prison group that publish the
NPP Jounral. Their quarterly journal reports on
case law,litigation strategy and a wide variety of
issues relevant to prison struggle. NPP offers a
variety of publications and resources. The NPP
also conducts !Dajor prison litigation which is
reported in PriSOll Legal News. Subscriptions
are $2.00 per year for prisoners and $30.00 for
others. National Prison Project. 1875
Connecticut Ave., N.W. #410. Washington D.C.
20009

prisons. As a 20 page bi-monthly tabloid paper,
PNS has extensive articles on a wide varicty of
issues from an anti-authoritarian perspective.
Subscriptions are free to prisoners and $ I0.00
to others. Prison News Service. P.O. Box 5052
Station A, Toronto, ONT. M5WI W4, Canada.
CURE

Citizens United for Rehabilitation ofErrants
provides the opportunity to prisoners to use their
writing skills and get into print. This
encourages self-expression in a positive manner.
The newsletter INSIDE-OUTSIDE also
provides useful information to prisoners.
lobbying fotbeuer laws is a primary function of
the chapter. Our fmancial resources are
extremely limited. We do not provide legal
support or put paralegal in touch with each
other. Send stamps, or what ever you can.
CURE, P.O. Box 2310. Washington, D.C.
20013-2310 (202) 789-2 I 26.
Families Again.t Mandatory Minimums
FAMM engages in lobbying as well as extensive
media appearances to educate the public about
the injustices resulting from mandatory
sentencing laws that leave judges no discretion
in imposing punishment on defendants.
FAMM-Gram in their bi-monthly magazine
which is highly informative and educational on
current sentencing changes. Send donation to:
FAMM. 1001 Pennsylvania Ave.• N.W.• Suite
200 South, Washington, D.C. 20004 (202) 4575790.

Raze The WaDs
RTW publishes a Prisoner Resource Guide
complete with addresses and prices. ifany for
materials for prisoners Some material is legal.
Christian, or just fun. Raze The Walls seeks
donations and requests should be directed to
P.O. Box 22774. SeaUle, WA 98122-0774
Florida Prison Newsletter

[description currently not available]
Prison Ncws Service
For over 10 years, PNS has provided in depth
and regular coverage ofprison news and
struggle in the U.S. and other countries. PNS
focuses on Native and minority issues as well as
political prisoner coverage. Despite being a
Canadian. the bulk of their coverage is on U.S.

112

I low to WIN Prison Disciplin:lI"\'llcarinl!s

23 - LEGAL BASICS and COURT OPTIONS

Why Most Prisoners Lose In Court
TIll: hi~g.csi prohlem in rriooncr wurt
Iiligotion, nrc:
(I) n lack or understandable source
material sho\\;ng the !>1cJls in c1eaf dclail down to

such minor dClnils such liS, nlways include n

suOicicnl1y slomped envelope (SASE) for return
copies of papers you IIfC filing wilh the ck-rks
onice, regardless if the CliUn fees hll\'c been
waived or IlOt
(2) when II \iolntitnl occurs. n prisoner
sometimes onl}' hn.~ II cuup!c mol1lhs 10 herome
semi-lcgallitcroIC. or tht.1' may lose out.
(3) prisuner.; nCl."'d 10 undet1iland the
clements ofovercoming. the mOlions. ohjcclions
and for example. Rule 12(h) compared 10 Fed.
R. Civ. P. Rule 56 mOliolllo dismiss, and their
failure 10 proceed with discovery lind file

objections 10 sloys of t1isc(l\'cl)' tlml anecl their
litigation;
(4) how to dmlt n hrief. and why they
should be aUllchcd 10 e\'ery motion (depending
on the local eOlu1 rulc)(mllstlocal rulc.<; require
supportin!;! briefs. evell on n mution for default
judgemenl). SUlllctimes, you can file 0 Request.
rnth\--,- than a Mution, which tl\'crcomes the Brief
or fonnalil}' pruc:ctlurcs. (eheck your locol mles);
(5) issue of dismissal for Inck of or
failure 10 get enough of discovery:
(6) the effect of Ft.-d. R. Ci\'. P. Rulc
36 Admissions fik-d with Fed R. Civ. P. Rule
33 - Jntcrrogaiorics and Fed. R. Ci\'. P. Rule
34 - Request fur l)roductit1l"\ ot the same lime.
and their" usc as a 1111.11 carl}' in n case for
prisoners lawsuits. rDther thm!::aler as would be
Dstandard procedure for IDwyers:
(7) the cOCcI uf the plainlin' moving
for sunullar)' judl!ClIlcnl first, compared to the
defendants. ami the hurden of proofs hcing
shined to lhe defendants:
(8) the impnnnncc of always filing
objections lo lhe gtlVenlll1cnts llllllions, or till:
stoying of your disclI\·el)'. and describil1!! why
discovery is neetled to pro;;ccute your cn~ ami

defend against 1Il0tions 10 dismiss nnd
magistrate recommendations for dismis."'I1.
(9) Watch the COlirt clerks. U.S.
Marshals. Mogistrole Judges, llnd judges
popt,.'rs, lh.."Y often make mislakes in filing their
popers with the proper plaCl."'S, scnding them 10
the \\TOng place, or quoting something that is
l\Ol.accurnte or comx:l Gel. these corrected, on
the record.
I tell you this only so you can
undcr.;tond the many obstocles )'ou need 10 be
aware of or stud}' up on. These an: only II few.

Bivens (§1983)
Not until Bil'ens"', in 1971, did the
eourts grnnt damag.e remedies by federal
cmplo}'ees for constitutional violations such ISS
ovmlahlc in 42 U.S.C, §1983 e\'Cll though thc
Supreme Court hod the power to grant relief not
~'Prcs.<;ly authorized hy statute"· os well as the
power to adjusl remedics'''. lJivc/lS gave the
couns spt.'Cifie aUlhorilY to grallt relief and
money damages for specific constilulional
viollllions hy fcdeml employcc'~,
Federal
prisoners do not have §1983 nccc.'1s without
pleading a Bivenf jurisdiction and WIder 28
USC § 1331. In ('tlrlSOI/'ItO. the court held that
Bh'/!lI.f is available to federal prisoners. State
prisoners ha\'e jurisdiction undt.'f § 1983 :md
under 28 USC § 1343.
In Biwms, the plaintiff alleged that
fcd..."'I1l1 agcnL<; nrrcsted him and searched his

m

IJil-r"s ,. Six U"k"ow" NaJlled

Agell1s ofthl!' Fcdl!'rallJIIIl't1ll ofNarcotics,
403 US 388. 91 SCt 1999,29 LE2d 619
(1971).
!JIIsh v Lllcm, 462 US 367, 103
S,Ct 2404. 76 LE2d 648(1983).

om
/Jell" /load, 327 US 678, 66 S.Ct.
773.90 LE 939 (1946).
Carl.wn vOl'ce", 446 U":;
'"'
S,C!. 1468.64 L.Ed2d 15(1980).

~4,

100

23 - LEGAL BASICS and COURT OPTIONS
home without a wnmmt, probable cause ond in
violation of the Fourth Amendment's bon on
unreasonable searches and seizures. The court
upheld the sufficiency of the complaint against a
motion to dismiss for "failure to state a cause of
action" and rejected the defendants' arguments
that a state tort action provided adequate and
exclusive judicial remedy.
Even though no specific authority
before Bivells for a civil action was in the
Constitution, the Bill of Rights, or any federal
statute, the court recognized "judicial remedy"
on the basis ofhistoric power offederal courts to
redress personal injury through particular
remedial methods for money damages. These
judicially created causes of action. known as
"Bivens actions," provide just remedies, not
substantive rights.4I1 Without a federal statute
(law, regulation. etc.) or constitutional basis such
as a "cause ofaction", (fact or facts which give a
person a right to judicial relief), the federal
courts, in Bivens, for an ordinary remedy for the
invasion or personal liberty interests led the
court to conclude that the plaintiff should be
allowed to redress a violation with a monetary
(cash) award.
The court main concern in the Bivens
decision, was the Court's perception that a
federal employee, acting unconstitutionally, in
the name of the United States, possesses a far
greater capacity for hann thon an individual
exercising no more authority than his or her own.
In the absence of a demonstrable written
commitment, such as a statute or law of a
constitutional issue to a coordinate political
department, the Supreme Court will presume that
justifiable constitutional rights are to be enforced
through the COurts.411

Elements of a Bivens Action
Bivells actions are not limited to Fourth
Amendment violations. The basis for a claim
must be "some illegal or inappropriate conduct
on the part of a federal employee that violates a
clearly established constitutional righl.4IJ A
481

Jacob v Curt, 721 F Supp 1536 (D
RI 1989), ajf'd 898 F2d 838 (1 st Cir 1990).
m
Davis v Passman, 442 US 228, 99
SCt 2264, 60 LE2d 846 (1979); and in Bivens.
483

Bivens v Six Unknown Named Agents
o/the Federal Bureau o/Narcotics, 403 US
388,91 S.Ct. 1999,29 LE2d 619 (1971);

(continued...)

113

Bivells action may NOT be based on a
Fourteenth Amendment violations by federal
prisoners because that amendment only applies
to states and state prisoners. However,
procedural and substantive due process claims
against federal employees must be based on the
Fifth Amendment4l4 •
In establishing a claim for
"conspiracy", a plaintiff must establish an
actionable Bivens action by showing:
(I)
existence of an
expresses
or
implied
agreement among the
defendants to deprive you of
constitutional rights, ond;
(2) an actual deprivation of
those .constitutional rights
from
the
resulting
agreement See: Ting v
United States, 927 F2d
1504 (9th Cir Cal 1991).
But, a violation of a statute
or regulation does not give
rise to a Bivens action unless
the statute or regulation
supplies the basis for a
elaim of a constitutional
right. See: Arcorell
v
Peters, 829 F2d 671 (8th
Cir SO 1987) cert den 485
US 987 (1988); Cale v
Johnson, 861 F2d 584 (2nd
Cir 1988).

Comparisons to a Bivens (§1983)
The Supreme Courts treatment of
Bivens actions is roughly the same as actions
provided by statute under 42 U.S.C. § 1983.
Some courts have denied Bivens actions when
reliefis available under § 1983. The Supreme
Court has noted that constitutional injuries

(...continued)
Davis v Passman, 442 US 228, 99 SCt 2264,
60 LE2d 846 (1979).
484

Locks v Three Unidelllijied Customs
Service Agents, 759 F Supp 1131 (ED Pa
1990); Richardsoll v Department ofJlllerior,
740 F Supp IS (D DC 199O)(dismissing
Bivelu claim based on a Ninth Amendment
violation because plaintifffailed to articulate
what rights beyond those expressly described
in the constitution were violated in connection
with an unlawful arrest.)

114

How to WIN Prison Disciplinary Hearings

made actionable by 42 U.S.C. § 1983 are of no
greater magnilude than those for whieh federal
officials may be responsible under Bivens,
because the pres.erures and uncertainties facing
decision makers in the state government are
similar to those affecting federal officials.4&!
Accordingly, the courts see virtually no
difference between 42 U.S.C. § 1983 actions
and Bivells actions in their application of
qualified or absolule immunitt16, and often
follow the precedents estahlished in statutory
civil rights law, particularly when affinnative
defenses and federal civil procedures are at
issue."'

Comparing Bivens to Federal Tort
QaimsAct
A Bive"s action is a judicially created

cause ofaction imposing liability against federal
officials individually, while an action under
Federal Tort Claims Act48S (FTCA) is a
statutorily created action imposing liability
directly on the United States. Moreover, Bivells
actions differ from actions under FTCA in that:
( I ) Bivem actions serve a
more effective deterrent
purpose since they are
designed to pennit damage
awards against individuals
directly:
(2) Punitive damagc.'> can be
awarded in Bivell.f actions,
but not in action.. under
FTCA;
(3) A Bivells plaintiff is
entitled to a trial hy jury: and
(4)
Bivells actions are
governed by federal law and
consequently by unifonn
rules, unlike actions under
FTCA in which liability is
largely subject to state low.
A federal official's conduct may
oonfonn with the constitution and the result is no
liability Wldcr Bive"s. but violate law of the slate

in which it occurred and suhject the United
States to liahility under FlCA. lltc reverse
may also be true.419

Elements of a Tort
Torts fall under many categories and
intents of liability. Some include Constitutional
Torts, Intentional Torts. Family Torts.
Negligence Torts. and many more. Any legal
encyclopedia will guide you in the proper
direction such as American Jurisprudence.
"Tort" is a commonly used tcnn for
your suffering a loss, physical or figurative and
defined in Blacks Law Dictionary as:
"A private or civil wrong or injwy,
other than breach of contract, for
which the court will provide a remedy
in the form of an action for damages.
A violation of a duty imposed by
general law or otherwise upon all
persons occupying the relation to each
other which involved in a given
v
transaction. See: Colemall
California Yeartv Meeti"g ofF,.iemJs
Church. 27 Cal.App.2d 579, 81 P2d
469,470.
II

Three elements must exist to a Tort:
( I) Existence of legal duty
from the defendant to
plaintiff, (duty to follow a
certain standard ofcare);
(2) breach, refusal or failure
to perform that duty. and
(3) damage as a proximate
result, actual injury, remote
or unpredictable result of a
negligent act, proximately
caused by a failure to
perform that duty. See:
Joseph vHustad Corp., 454
P2d 916, 918.
The Supreme cow1 has held that "duty
of care owed by the Bureau ofPrisons to federal
prisoners is fixed by 18 U.S.C. § 4042
independent of an inconsistent slale rule.

485

B"tz v Ecollomou, 438 US 478, 98
SCt 2894. 57 LE2d 895 (1978).

486

id Bmz; ScheuI' v Rhodes. 416 US
232,94 SCt 1683,40 LE2d 90 (1974), cel1
dell 435 US 924 (1978).

Immunity From Suit
When filing a complaint, iclude a
paragraph or section generally under the section
stating Jurisdiction, and describe why the

487

See itl Butz; Bivells; Joiller v
Ridgelalld, 669 F Supp 1362 (SD Miss 1987).
488
28 U.S.C. § 2671 et seq.

489

Tillg v Ullited States. 927 F2d
1504 (9th Cir Cal 1991).

23 - LEGAL BASICS and COURT OPTIONS
defendants are NOT subject to immunity,
qualified or othelWise.
Courts hold the doctrine of qualified
immunity attempts to balance the strong policy of
encoWllging the vindication offederal civil rights
by compensating individuals when those rights
are violated, with the equally salulaJy policy of
attracting capable public officials and giving
them the scope to exercise vigorously the duties
with which they ore charged, by relieving them
from the fear of being sued personally and
thereby made subject to monetary liability.4510
The doctrine shields government officials from
liability for damages on account of their
performance of discretionary official functions
-insofar as their conduct does not violate clearly
established statutory or constitutional rights of
which a reasonable person would have known.Harlow, 457 U.S. at 818. This protection turns
on the -'objective legal reasonableness'- of the
allegedly unlawful official action -assessed in
light of the legal rules that were 'clearly
established' at the time it was taken.- Anderson,
483 U.S. at 639 (quoting Harlow, 457 U.S. at
818-19).
Necessary Elements to a Lawsuit

In Monell the Supreme Court has
defined the very language required in a Bivens or
§ I 983 action. 491 The language must show a

casuaJ relation between the defendant's conduct
and the plaintifrs constitutional deprivation.
The Seventh Circuit has also defined "cause in
fact" relation and that it must be shown to have
existed between the defendant's and the
proximate cause to the plaintif[492
You must layout a pattern, showing:
( I) What statute or authority you arc
claiming was violated for example: 42
USC §1983~
(2) Quote the statute of jurisdiction,
for ex: 28 U.S.C. § 1343 (for state
prisoners) and
28
U.S.C.
§

490

See Anderson v. CreigIJto1l,
483 U.S. 635,638 (1987); Harlow v.
Fitzgerald, 457 U.S. 800, 806-07,813-14
(1982); see also Weaver v. Brenner, 40 F.3d
527, 532 (2d Cir. 1994).

115

1331 (a)(for federal prisoners) or
diversity;
(3) In a short paragraph or two show
whey the defendants are not subject to
immunity, qualified immunity or
Quasiquasi-judicial immunity.
judicial immunity might apply to a
disciplinary hearing officer, especially
in the State ofMichigan.
(4) list the defendants names, their
capicity, and describe the defendants
actions why they are in the lawsuit
only relevant to the issue without any
alleegations.
(5) describe in detail how you were
harmed only relevant to the issue and
how that violates a spefic right, law or
provision.
(6) describe what type of relief you
want, for ex: injunctive, declaratory,
money, etc.
Don't forget to read the section on the
Prison Litigation Reform Act of 1996 with the
authors version reprinted in this chapter.
An average complaint has 6
components: ( I) caption or heading; (2)
statement ofjurisdiction; (3) statement of facts;
(4) cause ofaction, (what rights were violated)
(5) prayer for relief; and (6) signature and
verification.
Claims for Money(§1983) vs Relief From
Action (Habeas)

In a Habeas Corpus you can only
claim relief from action and not money
damages. You can file both in some districts,
and stay the § 1983 action pending the outcome
ofthe habeas corpus. Check your local district
for its decisions and local rules. The distinction
in Habeas actions requires that the prisoner first
exhaust state remedies by presenting his claims
to the state court before proceeding to federal
court. Habeas does not allow for money
damages. In a §1983 action you do not need to
e:dtaust state remedies and only grants remedies
such as money damages, injunctive or
declaratory relieffor constitutional violations.49)

491

M01lell v Department 0/Social
Services, 436 US 658 (1978).
C01lner v Reinhard, 847 F2d 384,
396-97 (7th Cir 1988).

492

493 Preiser v Rodriguez, 411 US 475;
Cook v Teaxs Dept o/Crimm Justice.
Plallning Dept, 37 3d 166 (5th Cir 1994).

How to WIN Prison Disciplinary Hearings

116

Frivolous & Unreasonable Claims

I only added this section because I have
scen sOllie absolutely unbased and frivolous
complaints. I have seen substantial complaint
lost just because during the suit process.
discovery was not pursued hard enough or other
factors between the stage of filing the complaint,
and the time the court makes a decision on the
governments boilerplate motion to dismiss. If
you have grounds, by all means, sue the ba!'itards.
lfyou are just complaining about something that
could and most likely would be fixed with an
administrative complaint. than take the
appropriate method. See the new Prisoners
Litigation Reform Act as described at the end of
this Chapter.
A claim is legally frivolous and may
justifY an award offees to the defendant under 42
USC § 1988 if it is clearly contrary to established
case laW~. A lawsuit is not legally mvolous
simply because it is unsuccessful. and in
determining whether a claim is unreasonable or
frivolous, courts will ovoid hindsight and judge
reasonableness of the action at the time it was
filed. Otherwise, plaintiff' will be discouraged
from bringing anything but "airtight" claimg4t5.
Thus, the defendant is NOT entitled to fees
simply because the plaintiff is unable to present
sufficient facts to avoid summary judgement496•
Sometimes, a suit might be frivolous.
but the claim meritorious. A good example, is in
HudsolJ v Hetlge,u7. In light of the Supreme
Courts holding in Parral v Taylor: 9S sometimes
the system is designed to NOT work fairly to all.
Going to Court

Your Incident Report was "retaliatory.
arbitrary, and capricious:' For the sake of
argwnent, the description below is what you will
likely be up against. The example poses several

possible scenarios. Whether true or not, only
you know.
An officer erred (lied), when he wrote
the Incident Report without valid supporting
evidence (lied to fabricate evidence), and when
he sought the advice of other staff (made it a
conspiracy), on how to make the Incident
Report stick at a hearing (figuratively "fucked
yon." no matter the cost). DHO refused to call
the "adverse" witness (refused to allow
clarification of the facts), and through his
written report (libeled you), or else the witness
erred (lied) in his testimony (slandered you).
Staff did this during their official work, and
while officially (under "color" of law), when
errors (lies) were known to exist (becomes
malicious).
Assuming you attempted and
completed the appeal process and your appeals
were denied, you need to review a few law
books. W you wish to take the matter to court,
you have that right. I recommend reading
Daniel Manvills' book, "Prisoners Self-Help
Litigation ManuaI 499." This is the best book (1
have seen) which explains legal matters to those
of us not born to be lawyers (legal crooks).
Your prison law library is required to have
other legal books on prisoners rights.
Before jumping, ready to sue, read a
few more things'OO. Read the Manville book. It
explains almost everything. and is beyond the
scope ofthis manual.
If you are serious, by now you will
have read the § 1983, along with (note 791)
which refers to "Disciplinary Proceedings."
This material can be focused on specific
violations of UDCIDHO and the institution.
Read the brief examples before proceeding to
court, or even before calling your attomcy. Get
a feel for what is winnable and what is loser
material. If you do decide to go to court, it is
betk.'f to proceed in some situations under a §
1983 action. rather than a Habeas Corpus, as is
ell:plained in Manville's book. Some situations

494

Fellowship Bapli." Church v Bentoll.
815 F2d 485 (8th Cir Iowa 1987), an remand
678 F Supp 213 (SD Iowa 1988).
495

Coals v Bechlel, 81l F2d 1045 (7th
Cic Wis 1987).
Coals v Bechlel, 811 F2d 1045 (7th
Cic Wis 1987).

496

497

H,uisoll v Hedge. 27 F3d

274 (7th Cic 1994).
498
PanYJI v Taylor. 451 U.S.
527,101 S.Ct. 1908(1981).

Prisoner's Self-Help Utlgatlon
Manual, 3rd edition revised 1995, 1100
pages by Daniel Manville, Published by
Oceana Publications, Inc., 75 Main St.,
Dobbs Feny, N. Y. 10522., $29.95 which
includes Postage & Handling to prisoners.
Also, Jailhouse Lawyen Handbook from
National Prison Project, 1875 Comecticut
Ave., N.W., Washington, D.C. 20009.
499

SOO

Civil Rights section in 42 USCA §
1983 (note 791).

23 - LEGAL BASICS and COURT OPTIONS
both legal avenues are necessary depending on
the desired outcome.
This chapter is not to tell you how, but
where, to look for the best resources available.
Another good book is a legaJ encyclopedia50l •
This volume, deals with penal institutions. It
also can give you a good feel and idea ofwhat to
expect from the coW1S. aJong with how they
think. The courts' position, as seen in this book.
could be quite useful to those serious about a
court action. These books listed. are some of
your best sources.
Make your decision carefully. and be
infornted by doing some research on the possible
obstacles you will face, and your foundation.
The reason 90% of all prisoner litigation is
dismissed by the courts, is because ofeither, I)
improper methods used in your court procedures
or, 2) an invalid reason. You can motion the
court (when you file your complaint) to appoint
a lawyer who will best represent your case,
which is also in the interest of the court. Ifyou
have a valid complaint, by meeting the basic
rules, the court may appoint council to smooth
the procedures and represent justi~.
SOl

American Jurisprudence (Am Jur)
2d, book 60 (penal Institutions). see also:
Georgetown Law Journal. Chapter VI,
Prisoners' Rights.
S02
Gordoll v Lucke, 574 F 2d 1147 (4th
Cir 1978; 28 U.S.C. § 191 5(d); Mosby v
Maybry, 697 F2d 213 (8th Cir 1982).
Additional Sources not found in most Law
Libraries from Shepard's, McGraw-Hill, 555
Middle Creek Park-way, P.O. Box 35300,
Colorado Springs, CO. 80935-35301-800458-8811: or you can write for a current
catalog.
Civil Actions Against United States, Its
Agencies, Offices & Employees: 2-volwnes
of about 550 pages each and comes with
update pocket-parts. Hard-cover $190.00 from
Shepard's, McGraw-Hili.
Civil Rights and CivU Uberties
Utigation: 2-volwnes ofaboQt 550 pages
each and comes with update pocket parts.
Hard-covcr $195.00, from Shepard's,
McGraw-Hili,
Rights of Prlsonen: From PretriaJ
detention to post-conviction relief. this treatise
details the law in this conlroversiaJ and
expanding area of litigation. You'll find
authoritive discussion of: First
Amendment rights, mail, visitation,

(continued...)

117

The winds of law - what will it be
today or tonunorrow, and how will it affect
yesterdayl We don't know. Laws and how they
affect you changs on a daily basis. Read the
Federal Reporters to understand the change
about to take place.
Prison Utigation Refonn Ad (PLRA) is now
Codified at 28 U.S.C. § 3626
When we thought things might get
better, they get worse. The Prison Litigation
Reform Act (pLRA) went into law attached as
a rider to the budget for the Justice Department
Signed by President Clinton on April 27, 1996,
the PLRA is the combined efforts of a lengthy
.. campaign waged by people who hate prisoners
including the National Association of the
Attorney Generals (NAAG). The goaJ restricts
prisoners' rights ofaccess to the federal courts
and to limit the ability of courts to remedy
constitutionaJ violations when they are found.
A significant part of this campaign has been
each state's attorney generaJ posturing before
the media with a "Top Ten List of Frivolous
Lawsuits" allegedly filed by prisoners. That
these lists were often disingenuous, misleading
or inaccW'llte made no difference as no one in
the corporate media bothered checking the
cases being cited. When they were checked. the
reality was often different [See April, 1996,
Page 6, Prison Legal News, Nol All Prisoner
Lawsuits are Frivolous, by Judge Jon
Newman].
It is no wonder that prisoner litigation
has increased, and is largely due to the
explosion of the prison population, however,
the per capita number of suits by prisoners has

(...continued)
communications, religion; Fourth
Amendment Rights, privacy and related
matters; Fifth and Eighth Amendment issues,
cluel & unusual punishment and Due Process
rights; Equal Protection clause,
discrimination issues; Prison labor,
disciplinary proceedings. The text examines
Constitutional rights ofFederaJ and Stale
prisoners, setting forth caveats and trends.
The issues ofprisoner's right to access to the
courts and legaJ assistance, post conviction
remedies, and prisoner conduct that
discourages court access are detailed. Written
1981, 2-volwne, Hd-bound 580 pages each
with pocket parts, Updated 1991 with current
supplement. 5150.00.

118

How to WIN Prison DisciplinnD' Hearings

actually declined in the last 20 years. Faced with
a dramaLically increasmg prisun pupulatiun. this
law is designed to ensure that prisoners can't
seek any relief from the courts to relieve
overcrowding or other inhumane conditions of
confinement. For now this article will infonn
readers of what the law says and its most
immediate impact.
The definitions used in the PLRA are
interesting. "Prisoner" includes "any person
subject to incarceration, detention, or admission
to any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for,
violations of criminal law or the tenns and
conditions of parole, probation, pretrial releasc,
or diversionary programs." It appears "the
presumption of innocence" is forgotten. The
PLRA specifically states it is intended to apply to
all prospective relief judgments whether they
were approved or entered on, before or after
passage oftbe PLRA.
Prisoner Release

The 1994 crime bill included a
measure, called the "Helms Amendment,"
designed to limit the ability of federal courts to
remedy overcrowding. This was codified at 28
U.S.C. § 3626. The PLRA. in subsection (a)(1)
[this section is continuously referred to
throughout the PLRAj modifies the Helms
AmendmenL and explicitly limiL'i any prospective
relief granted by a federal court to extend no
further than ncccs.'i8I)' to correct the violation of
federal rights and such relief must be narrowly
drawn. The law states it docs not authorize courts
to raise taxcs or order thc construction of new
prisons in the cxercise of their remedial powers.
Before a court can enter an order
requiring the release of priwners in a civil rights
action the court must have previously entered a
less intrusive order that failed to remedy the
deprivation sought to he remedied hy the
prisoner release order~ the defendant had a
reasonable mount of time to comply with
previous orders; "a party seeking a prisoner
release order in Federal court shalI be entered
only by a three judge court in accordance with 28
U.S.C. § 2284." Single judges who helieve a
prisoner release order is required can sua spontc
request the convening of a three judge court to
consider the order. "The three judge court shalI
enter a prisoner releasc order only if the court
finds by clear and convincing evidence that: (I)
crowding is the primary cause of the violation of
a federal right; and (2) no other relief will
remedy the violation ofthe federal right."

The law provides prison officials with
standing tu int\,'TVenc in overcrowding litigation
where prisoners or detainees might be released
a result. It defines the party with standing to
intervene, cven if they are not a named
defendant or party to the underlying action as:
"government unit or official who funds,
operates or maintains prison facilities, the
prosecution or custody of persons who may be
released from or not admitted into a prison as a
result of a prisoner releasc order." These
officials "shall have standing to opposc the
imposition or continuation in effect of sucb
relief, and shalI have the right to intervene in
any proceeding relating to such relief."

Preliminary Injunctions Limited by
PLRA
The PLRA drastically limits the ability
of federal courts to enter Preliminary
Injunctions (PI) or Temporary Restraining
Orders (TRO) by stating such PI' s will
automatically expire after 90 days of being
entered, unless the court makes the fmdings
required in subsection (a)(I) [see preceding
section ofthis article) of the law, and makes the
order fmal before the end of the 90 day period.
This applies only to civil actions with respect to
prison conditions.

PLRA Denies Relief
Asswning a prisoner has won a case at
trial and achieved injunctive relief thc PLRA
states that in any eivil action involving prison
conditions where prospective relief \Vas
ordered" the relief (i.e. an injunction) will be
terminable upon the motion of any party two
years after the court granted the relief; one year
after a court has denied a motion for relief under
the PLRA and for eases where relief was
entered before pas.'J8ge of the PLRA, two years
after its enactment into law.
"In any civil action with respect to
prison conditions, defendant or intervenor shall
be entitled to immediate termination of any
pro!>'Pective relief if the reliefwas approved or
granted in the absence ofa finding by the cowt
that the relief is narrowly drawn, extends no
further than necessmy to correct the violation of
the federal right, and that the prospective relief
is narrowly drawn and the least intrusive means
to correct the violation of the federal righl"
The prospective reliefwoo't terminate if a court
makes the written fmdings based on the written
record that prospective reliefremains necessary
to correct a current or ongoing violation of a
federal right, etc.

119

23 - LEGAL BASICS and COURT OPTIONS
The PLRA provisions that affect
damage claims after they have accrued are of
dubious constitutionality. In Logan v.
ZimmennQIIBrush Company, 455 US 422, 102
S.Cl 1148 (1982) the supreme court held that a
tort claim is a type of property. which should
apply to constitutional claims which are
frequently referred to as constitutional torts.
Thus, legislation that terminates a damage claim
after the fact may violate due process.

PLRA Limits Consent Decrees
The PLRA orders courts not to enter
any consent decrees on prison conditions unless
it complies with the limitations on relief of
subsection (a)(I). The PLRA states it will not
affect private settlement agreements that are not
subject to court enforcement (i.e. the worthless
ones).

PLRA Discourages
Special Masters

and

Denies

In a classic piece ofmicro-management
the PLRA gives detailed instructions ofwho can
be appointed as special masters in prison
litigation and the process for appointment The
PLRA shifts the burden of paying the special
masters flum the prison official defendants to the
federal judiciary and limits special master
payment to that afforded to attorneys in prison
litigation ($40 an hoW' for out ofcourt work; $75
an hoW' for court appearances). The likely result
will be a shortage of people with the necessary
expertise willing to serve as special masters.
Recent news reports have stated that special
masters appointed to implement changes in the
Pelican Bay litigation have already suspended
their efforts until the matter of their payment is
resolved. In essence this shifts the burden of
paying masters from the state defendants to the
federal judiciary-from funds appropriated to their
budget by Congress!

The Civil Rights of Institutionalized
Persons Act: (CRIPA) Codified as 42
U.S.C. § 1997
CRIPA allows the attorney general to
file suit against jails or prisons which are
violating the federal rights of those confmed
within them. Under a new amendment any such
suits must be personally signed by the attorney
general. not the assistant US attorney actually
filing the suit. Likewise the AG must personally
sign any motions to intervene in ongoing prison
litigation.

..;::;:;;qc:

..,.,bA..... ,

i . .t&cxs:x ..

iNn. *"",J;&Q&A;q ;44Z=;;;.$bl ...

AU;;;

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Previously CRIPA set forth criteria for
the establishment of grievance systems The
PLRA has now modified 42 U.S.C. § 1983 to
require the exhaustion of administrative
remedies before prisoners can file suit
challenging conditions of confmemenl Since
many suits seek money damages and no state
grievance systems we aware ofprovide money
damages, the relief available in administrative
forums is limited. The PLRA notes that the
failure ofa state to institute a grievance system
won't be cause for it to be sued. The PLRA
states that if a cow1 wants to dismiss a
prisoner's suit because it is frivolous, malicious,
fails to state a claim upon which relief can be
granted, or seeks monetary relief from a
defendant who is inunune from such relief,1he
court can dismiss the suit without requiring
exhaustion of administrative remedies.

PLRA Limits Attorney's Fees and
Punishes Lawyers for Representing
Prisoners
Anyone doing prison litigation knows
that it is extremely difficult to find counsel
willing to take on prison civil rights actions
That situation is now going to get a lot worse.
The PLRA modifies 42 U.S.C. § 1988, which
allows the award of attorney fees to civil rights
plaintiffs who prevail in their suits. It codifies
the existing law that requires the fee award to
be directly related to proving the violation ofthe
plaintifFs rights, the fee awarded is
proportionate to the relief awarded and tlle fee
was directly and reasonable incurred in
enforcing the relief ordered for the violation.
Which given the limits on relief won't be much!
Until now cow1s would award
attorney fees to prevailing plaintiffs based on a
number of factors such as the experience and
skill of the attorney, the prevailing market rate
in that area for comparable attorneys, etc. The
fee award Was paid in its entirety by the losing
defendanl That has all changed now. The law
states: "Whenever a monetary judgment is
awarded in an action described in paragraph ( I
), a portion of the judgment (not to exceed 25
percent) shall be applied to satisfY the amount
ofattorney's fees awarded against the defendanL
Ifthe award ofattorney's fees is not greater than
150 pen:ent ofthe judgment, the excess shall be
paid by the defendant.
"(3) No award ofattorney's fees in an
action described in paragraph (I) shall be based
on an hourly rate greater than the amount
authorized under 18 U.S.C.A. § 3006, for

M ..

,,:,-m!"=: ..

120

How to WIN Prison Disciplinary Hearings

payment of court appointed counsel:' The
problem with this is that the rates established for
court appointed counsel apply to criminal
actions, where the government is required to
provide counsel. It will remain to be seen how
many attorneys will now take prisoner cases
when. ifthey win, they face only the prospect of
$40 an hour for their out ofcourt work and $75
an hour for in court appearances. The intended
result of this is to make attorneys unwilling to
take on prison litigation. This will have a major
impact on prison litigation.
Of immediate interest is whether this
limitation on attorney fees can be applied to
cases that were pending when the law was
passed or, at a minimum, to work performed
before the passage ofthe statute. This portion is
also vulnerable to challenge as violating both due
process and equal protection.

PLRA Limits Recovery for Damages
"No federal civil action may be brought
by a prisoner confined in a jail, prison or other
correctional facility, for mental or emotional
injury suffered while in custody without a prior
showing of physical injury." This goes directly
against numerous cases which have held that
prisoners can recover monetary damages for
constitutional violations that result only in fear,
mental or emotional injury. This seems to
indicate an intent to allow psychological torture
or tonnent with complete impunity by prison
officials.

PLRA Limits Prisoner Appearances
at Court Hearings
The PLRA requires that any pretrial
court hearings be conducted by phone, video
conferencing or in thc prison it~lf if possible.

PLRA Provides Defendants Need Not
Reply to Complaint and No Relief
Can beTaken
"Any defendant may waive the right to
reply to any action brought by a prisoner
confined in any jail, pri!lon or other correctional
facility under... 42 U. S.C. § 1983 or any other
federal law. NOl\vithstanding any other law or
rule of procedure, such waiver shall not
constitute an admission of the allegations
contained in the complaint. No relief shall be
granted to the plaintiff unless a reply has been
filed,"
"The court may require any defendant
to reply to a complaint brought under this section

if it fmds that the plaintiff has a reasonable
opportunity to prevail on the merits."

PLRA Limits Filing In Forma
Pauperis
In 1894 congress enacted 28 USC. §
1915 to allow poor people access to the courts

without requiring prepayment of the filing fee
needed to file a lawsuit. Since most prisoners
arc too poor to pay the current $120 filing fee
required in federal court, the bulk of prisoner
litigation is filed In Fonna Pauperis (or as an
indigent) The PLRA extensively modifies the
IFP statute and essentially makes indigent
prisoner filings a thing of the past It requires a
prisoner seeking to file suit without prepayment
of the filing fee to submit an affidavit of their
assets and income, and a certified copy of their
prison trust account for the six month period
immediately preceding the filing of the
complaint or the notice ofappeal, obtained from
the appropriate prison official.
"( I ) Notwithstanding subsection (a),
if a prisoner brings a civil action or liIes an
appeal in forma pauperis, the prisoner shall be
required to pay the full amount ofthe ming fee.
The court shall assess, and when funds exist.
collect, as a partial payment of any court fees
required by law, an initial filing fee of 20
percent of the greater of (A) the average
monthly deposits to the prisoner's accounl~ or
(B) the average monthly balance in the
prisoner's account for the six month period
immediately preceding the filing of the
complaint or notice of appeal.
"(2) After payment of the initial filing
fee, the prisoner shall be required to make
monthly payments of 20 percent of the
preceding month's income credited to the
prisoner's account. The agency having custody
ofthe prisoner shall forward payments from the
prisoner's account to the clerk of the court each
time the amount in the account exceeds $10
until the filing fees are paid."
"(3) In no event shall the filing fee
collected exceed the amount of fees permitted
by statute for the commencement of a civil
action or an appeal ofa civil action or criminal
judgment
"(4) In no event shall a prisoner be
prohibited from bringing a civil action or
appealing a civil or criminal judgment for the
reason that the prisoner has no assets and no
means by which to pay the initial partial filing
fee."
It will be interesting to see how much
time is going to spent administering the small

121

23 - LEGAL BASICS and COURT OPTIONS
amounts offunds that most prisoners receive. A
prisoner earning say $20 a month, if that much,
would pay $4 a month for 30 months to pay the
SI20 filing fee. The amount of time spent
administering these funds will likely cost more
than the filing fee itself. But the paramount
pwpose of imposing the filing fee is to limit the
nwnber ofsuits filed by prisoners.
The PLRA also amended the
Bankruptcy Code so that prisoners cannot seek
relief"for a fee imposed by a court for the filing
of a case, motion, complaint, or appeal, or for
other such costs and expenses assessed with
respect to such filing, regardless of an assertion
ofpoverty by the debtor...... The law also allows
for the collection of costs assessed against
prisoners pursuant to § 19 I 5 in the same
m8lUler as the filing fee.
Less than three weeks after the passage
of PLRA, prisoners in California have been
inform by the courts of the new fee requirements
and asking the prisoners if they want to
voluntarily dismiss the action or continue and
pay the fee. The wording of the orders make it
clear the court would prefer the action be
withdrawn. Readers should note tbat tbey can
seek reimbursement for any filing fee tbat is
paid under 42 U.S.C. § I 988. Given the fact
that prisoner litigants will be forced to pay the
entire filing fee eventually, even if they file in
forma pauperis, prisoners may consider paying
the filing fee up-front and avoiding IFP slatus
This will ensure the complaint is served on the
defendants, removes the pre-screening hurdle,
and requires the defendants to respond to the
complaint.
The law also limits the number of suits
prisoners can file under some circumstances "In
no event shall a prisoner bring a civil action or
appeal ajudgment in a civil action or proceeding
under this section if the prisoner has, on 3 or
more prior occasions, while incarcerllted or
detained in any facility, brought an action or
appeal in a court of the United Slates that was
dismissed on the grounds that it is frivolous,
malicious, or fails to slate a claim upon which
relief may be granted, unless the prisoner is
under imminent danger of serious physical
injury." This makes the just the language in an
orderoffiivolousness a requirement to request a
reconsideration, ele. It also requires courts to
screen IFP complaints before docketing or as
soon after docketing as possible ifit is an action
filed by a prisoner.

PLRA Directs Payment of Damage
Awards for Restitution Orders

"Any compensatory damages awarded
to a prisoner in colUlcction with a civil action
brought against any Federal, Slate, or local jail,
prison or correctional facility, shall be paid
directly to satisJY any outstanding restitution
orders pending against the prisoner. The
remainder ofany such award, after full payment
of all pending restitution orders shall be
forwarded to the prisoner." Past court rulings
have upheld the diversion ofdamage awards to
pay for restitution orders. $OJ However, such
funds cannot be used to pay for, say, the cost of
incarceration or similar kickbacks to prison
officials.""

PLRA Requires Victim Notification
of Damage Awards So They Can
Benefit From Your Further Loss
"Prior

to

a

payment

of any

compensatoty damages awarded to a prisoner in

-COlUlcction with a civil action brought against
any Federal, Slate, or local jail. prison, or
correctional facility or against any official or
agent of such jail, prison, or correctional
facility, reasonable efforts shall be made to
notifY the victims of the crime for which the
prisoner was convicted .and incarcerated
concerning the pending payment of an such
compensatory damages."

PLRA Provides Loss of Earned
Time Through An Unfair Provision
for Prison Time for Filing a
Complaint Deemed Frivolous
I would like to see this rule applied to
United Slates Allomeys when they file a
frivolous response or lie in an over eager to
win. Unfortunately, the govenunent only
applies this punishment to those without
resources or training to fight back. Federal
prisoners who earn a measly S6 days a year in
earned time credits face the loss ofsuch credits
if they have not yet been earned, if a court fmds
that the claim was filed for a malicious purpose,
to harass the defendant, or if the prisoner
testifies falsely or presents false evidence or
information to the court. Readers will note this
applies only to federal prisoners. More tellingly,

SOJ

See: Beeks v. Hu"dley, 34
F.3d 658 (8th Cir. 1994)
S04

See: Ha"ki"s v. Fi""el,

964 F.2d 853 (8th Cir. 1992).

122

How to WIN Prison Disciplinary Hearings

no such sanctions are leveled against prison
official defendants or their atlumeys.
Il would prohahl)' not be an
understatement to say that the PLRA is the
biggest development. and a had one at that, to hit
prisoner litigants in the past 30 years As we
come up on the 25th anni\'crsaIY of the Attica
uprising this September 1996, prisoners find
themselves in essentially the same situation they
did then: without adequate recourse to the courts
or other forums in which to seek justice and
equitable relief. Il was the Attica uprising. with
its attendant 43 deaths, that marked a turning
point in the courts' until then. largely "hands off'
altitude towards the constitutional right'! of
prisoners. To the extent that history repeats il'IClf
first as tragedy then as farce, congress appears to
have forgotten why the courts got involved in
prison conditions to begin with.
Already reports are flowing in telling of
prison officials in various states, including South
Carolina, Michigan and Iowa, are moving to
vacate long-standing consent decrees and
injunctions. Since at least 430 prisons in the U.S.
are under some form of consent decree or
injunction, the impact of the PLRA cannot be
overstated The ACLU's National Prison Project
has already considered this to combat the
institutional litigation provisions of the PLRA.
applies only to the class action aspects of the
PRLA, not the IFP or individual litigant portions.
] The Anti Terrorism Bill has gutted federal
habeas corpus ifanyone is watching.

APPENDIX-A

APPENDIX-A

(28 CFR § 541- Tables)
Federal BOP Violations & Sanctions
The Tables listed below are from The
Code of Federal Regulations (CFR), for federal
inmates. Refer lo lhe CFR for delailed
information about GCT, SCT, phone sanctions
etc. Institutions often take phone privileges
when the rules specifically say lhat phone or
visiting limilation sanction cannot be applied
lUlIess the infraction was related to lhat privilege.
Check lhe calculation if you lost GCT
(Good Conduct Time). Many limes GCT is
taken and is excessive and improper lo take from
you. Check on lhe actual amount you have
coming, and lhe amountlaken.
Mille. Allowable Sanctions

28 CFR § 541.13 (Appendix A, Table 4 Sanctions)
28 CFR § 540.40 (Visiting Regulations)
28 CFR § 100. (Telephone Regulations for
Inmates) § 540.105 (Telephone calls for inmates
in admission, holdover, segregation, or pre-trialstatus) • ... Slaff may not withhold phone
privileges as a disciplinary measure except
where the infraction for lhe disciplinary action is
taken involves abuse, or a clear potential for
abuse, oflhe phone privileges.·

See also: 28 CFR § 541.13 (Appendix A, Table
4 - sanctions)(g) (loss of privileges) " ... loss of
telephone privileges for a specified lime for an
abuse oflhe telephone privilege ..." Slaffcannot
take phone privilages, unless lhe disciplinary
action is telephone relaled.
28 CFR § 541.13 (Appendix A, Table 4 Sanctions)(l-a lhrougb I-t) Good Conduct Time
and Slalulory Good Time withholding guidelines.

NOTICE OF CHANGE: As of
passing by the BOP into law in the 2
Q 1996, , 28 CFR § 541 has been
amended. Also see 60 FR 54922,
Final Effective Date 07100/96

123

The changes implement reVISIOns
provided in the Violent Crime Control and Law
Enforcement Act of 1994 which requires
inmates sentenced for crimes of violence to
"display exemplary compliance" wilh institution
regulations in order to earn good conduct Time.
(GCT). When lhis revision is fmally published,
we will publish our 7lh Edition ofthis manual.
Based on my review ofa preliminary
copy, if you are convicted of a crime
categorized as a "violent crime" sanctions will
be more severe lhan lhose convicted of "nonviolent crimes. We will be in touch with lhe
ACLU for comment on this issue.
For more inforntation conlaet: Roy
Nanovac. Rules Administrator, Department of
Justice, Bureau of Prisons, HOLC Room 754,
320 First St. NW, DC 20534. (202) 5146655.

How to WIN Prison Disciplinao' Hearings

124

TIME
IN
PROCESS
--_ LIMITS
_
-- _.DISCIPLINARY
- _-- _-_
..------28 CFR 541.11 TABLE - 2
..•

. . -.-.-_._.-

..

..

Staff first becomes aware ofyour involvement in the incident.

Maximum, ordinarily of3 work days from the time

Ordinarily maximum of24 hours

staffbecame aware ofthe person's involvement
in the incident
(Excludes the day the staffbecame aware ofthe inmate's
involvement, weekends, and legal holidays.)

. Initialhearing by UOC

Staff must give inmate notice ofcharges
by delivering Incident Report.
Unless waived, a minimum of
24 hours before DHO may
hear your incident report.

Note: These time limits are subject to
exceptions as provided in the rules,
(28 Code of Federal Regulations).
Staff may suspend disciplinary procedings for a period
not to exceed two calander weeks while infonnal
resolulion is undertaken and accomplished.

Ifinformal resolution is unsuccessful, staff
may reinSlalC disciplinary proceedings at
the same Slage at which suspended.
The time requirements then begin running
again, at the sanlC point at which they
were suspended.
For Federal Prisoners.
State Prisoners, check your State Rules.

The term, "Ordinarily", is NOT
an excuse to do anything staff
wishes. Any delay beyound what
is mentioned must be substantially
justified: ex: Fire, Rio~ etc.

APPENDIX·A

125

28 cm § 541.13 - Table - 3 - (Greatest Catcgoal
100 - Series: PROHIBITED ACTS AND DISCIPLINARY SEVERITY SCALE

100

I<llUng

101

Assaulting any person (Includes sexual assault) or an armed assault on
the institution's secure perimeter (a charge for assauWng any person at
this level is to be used only when serious physlcallnjury has been
attempted or carried out by an Inmate)

102

103

Escape from escort; escape from a secure institution (security level 2
through 6 and admlnistlatlve Institutions); or escape from a Security
level I Institution with violence

In furtherance of a prohibited act of Greatest Severity, e.g., In
furtherance of a riot or escape; otherwise the charge Is properly
classified Code 218, or 329)
104

Possesslon, manufacture, or Introduction of a gun, firearm, weapon,
sharpened Instrument, knife, dangerous chemical, explosive or any
ammunitlcn

105

Rioting

106

Encouraging others to riot

107

Taking hostage(s)

108

Possession, manufacture, or Introduction of a hazardous tool (Tools
most likely to be used In an escape or escape attempt or to serve
as weapons capable of doing serious bodily harm to others; or those
hazardous to Instltuticnal security or personal safety. e.g., hack-saw
blade)
Possesslon,lnJroduction, or use of any narcotics, marijuana, drugs, or
related paraphernalia not prescribed for the Individual by the medical
starr

110

Refusing to provide a urine sample or to take part in other drug-abuse
testing

198

Interfering wlth a staff member In the performance of duties. (Conduct
must be of the Greatest Severity nature) This charge is to be used
only when another charge of greatest severity Is not applicable

199

B. Forfeit earned statutory
good time (up to 100%)
and/or terminate or
disallow extra good time
(an extra good time
sanction may not be
suspended),

Setting a fire (charged wlth this act In this category only

when found to pose a threat to life or a threat of serious bodily harm or

109

A. Recommend parole
date resclsslcn or
retardatlcn.

Conduct which disrupts or Interferes wlth the security or ordeIIy
running of the Institution or the Bureau of Prisons. (Conduct must be of

the Greatest Severity nature.) This charge Is to be used only when
another charAe of oreatest seVeritv is not-anolicable

8 1 Disallow ordinarily
between 50 and 75%
(27-41 days) of good
conduct time credit
avallable for year (a good
conduct time sanction
may not be suspended).
C. Disciplinary Transfer
(recommend).
o Disciplinary segregation
(up to 60 days).
E. Make monetary
restitution.

F. Withhold statutory
good time (Note-can be
In addition to A through
E-cannot be the only
sanction executed).
G. Loss of privileges
(Note-can be in addition to
A through E-cannot be
the only sanction
execuJed),

200

201
202
203
204

205

206

207
208

209
210
211
212
213
214
215
216

217
218

219

220
221

222
223

224
298

299

Escape 'rom unescorted Community Programs and activities
and Open Institutions (Security level 1) and from outside secure
institutions· without violence.
Fighting with another person
(Not to be used)
Threatening another with bodily harm or any other offense
extortion, blackmail, protection: Demanding or receiving money
or anything of value In retum for protection against others, to avoid
bodily harm, or under threat of informing.
Engaging in sexual acts
Making sexual proposals or threats to another
Wearing a disguise or a mask
Possession of any unauthorized locking device, or lock pick, or
tampering with or blocking any lock device (includes 213
keys), or destroying, altering, interfering with, improperly 214
using, or
damaging any security device, mechanism, or
procedure.
Adulteration of any food or drink.
(Not to be used)
Possessing any officer's or staff clothing
Engaging In, or encouraging a group demonstration
Encouraging ethers to refuse to Wllf'k, or to participate in a work
stoppage.
(Not to be used)
Introduction of alcohol into BOP faclllty.
Giving or offering an official or staff member a bribe, or anything
of value.
Giving money to, or receiving money from, any person for
purposes of introducing contraband or for any other illegal or
prohibited purposes.
Destroying, altering, or damaging govemment property, or the
property of another person, hiMng a value In excess of $100.00
or destroying, altering, or damaging life-safety devices (e.g., fire
alarm) regardless of financial value.
Stealing (theft; this Includes data obtained through the unauthorized
use of a communications facUlty, or through the unauthorized
access to disks, tapes, or computer printouts or other automated
equipment en which data is stored.)
Demonstrating, practicing, or using martial arts, boxing (except
fer use of a punching bag), wresUlng, or ether forms of physical
encounter, or military exercises or drill.
Being in an unauthorized area with a person of the opposite sex
without staff permission.
Making, possesslng, or using intoxicants.
Refusing to breathe into a breathaJyzer or take part In other testing
for use ef alechal
Assaulting any person (charged with this act only when a
less serious physical injury or contact has been attempted
or carried out by an inmate)
Interfering with a staff member in the performance
duties
(Conduct must be of the High Sevetfty nature.) This
charge is to be used only when another charge of high
-severity Is not applicable
Conduct which disrupts or interferes with the security or
orderly running of the Institution or the Bureau of Prisons
(Conduct must be of the High Sevetfty nature) this
charge Is to be used only when another charge of high
Is not a icable

0'

126

A. Recommend parole
date rescission or
retardation.

B. FORFEIT eamed
statutory good time up to
5QflL or up to 60
days, whichever Is less,
and/or terminate or
disallow exira good time
(an extra good time
sanction may not be
suspended).
B.1 Disallow ordinarily
between 25 and 5OCj(, (1427 days) of good conduct
time credit available for
year (8 good conduct time
sanction may not be
suspended).
C. DISCIPLINARY
transfer (recommend).
D. Disciplinary
segregation (up to 30
days).

E. Make monetary
restitution
F. Withhold statutory
good time
G. loss of prMIeges:
commissary, movies,
recreation, etc.
H. Change housing

(quarters).
I. Remove from
program and/or group
activity.

J. loss of lob
K ImpoUnd inmate's
personal propertyL. ConfISCate contraband.

M. Restrict to quarters

APPENDIX-A

127

28 crn § 541.13 - Table - 3 - (Moderate Category>
300 - Serle'!: PROHIBITED ACTS AND DISCIPLINARY SEVERITY SCALE

300
301
302
303
304
305
306
307

308
309
310
311
312
313
314

315
316
317
318
319
320

321
322
323
324
325
326
327
328
329
330
331

398

399

Indecent exposure
(Not to be used)
Misuse of authorized medication
Possession of money or currency, unless specifically authorized, or In
excess of the amount authorized.
Loaning of property or anythIng of value for profit or Increased retum.
Possession of anything not authcrlzed for retention or receipt by the inmate,
and not issued to him through regular channels.
Refusing to work, or to accept a program assignment.
Refusing to obey an order of any staff member (May be categorized and
charged In terms of greater severity, according to the nature of the order
being disobeyed: e.g.,fallure to obey an order which furthers a riot would be
charged as 105, Rioting; refusing to obey an order which furthers a fight
would be charged as 201, Fighting; refusing to provide a urine sample when
ordered would be charged as Code 110.
Violating a condition of a furlough.
Vlolalfng a condllfon of a community program
Unexcused absence from work or any assignment
Falllng to perform work as instructed by the supervisor
Insolence towards a staff member
Lying or providing a false statement to a staff member.
Counterfeiting, forging or unauthorized reproduction of any document, article
of Identification, money, security, or orliclal paper. (May be categorized In
terms of greater severity according to the nature of the Item being
reproduced, e.g., counterfeiting release papers to effect escape, Code 102
or Code 200).
Participating In an unauthorized meeting or gathering.
Being In an unauthorized area.
Failure to follow safety or sanitation regulations
Using any equipment or machinery which Is not speclncally authorized.
Using any equIpment or machinery contrary to instructions or posted safely
standards.
Failing to stand count.
Interfering with the taking of count.
(Not to be used)
(Not to be used)
Gambling
Preparing or conducting a gambling pool
Possession of gambling paraphernalia
Unauthorized contacts with the public
Giving money or anything of value to, or accepting money or anything of
value from: another inmate, or any other person without staff authorization.
Destroying, altering, or damaging government property, or the property of
another person, having a value of $100.00 or less.
Being unsanitary or untidy: falling to keep one's person and one's quarters In
accordance with posted standards.
Possession, manufacture, or introduction of a non-hazardous tool or other
non-hazardous contraband (Tool not likely to be used In an escape or
escape attempt, or to serve as a weapon capable of dolng serious bodily
)larm to others, or not hazardous to Institutional security or personal safely;
Other non-hazardous contraband Includes such Items as food or cosmetics)
Interfering with a staff member In the performance of duties.
(Conduct must be of the Moderate Severity nature.) This charge is
to be used only when another charge of moderate severity is not
applicable.
Conduct which disrupts or Interferes with the security or orderly running of
the Institution or the Bureau of Prisons. (Conduct must be of the
Moderate Severity nature). This charge is to be used only when
another charae of moderate severttv Is not applicable.

A. Recommend parole
date reselssIon
retardation.

B. FORFEIT earned
statutory good time up
to 25% or up to 30
days, whichever is
less, and/or termInate
or disallow extra good
time (an extra good
time sanction may
not be suspended).
B.1 DIsaUow ordinarily
up to 25911 (1-14 days)
of good conduct time
credit available for year
(a good conduct time
sanction may not be
suspended).
C. DiscIplinary transfer
(recommend).

D. Disciplinary
segregation (up to 15
days).
E. Make monetary
restitution.
F. WlthhoId statutory
good time.
G. Loss of prlvlleges:
commissary, movies,
recreation, etc.
H. Change housing
(quarters).

I. Remove from
program and/or
group activity.

J. Loss of job.
K Impound Inmate's
personal property.

l. Confiscate
ccntraband.
M. Restrict to quarters.

N. Extra duty.

How to WIN Prison Disciplinary Hearings

128

28 CFR § 541.13 - Table - 3 - <Low Moderate Category)
400 - Series: PROHIBITED ACTS AND DISCIPLINARY SEVERITY SCALE

400

Possession of property belong to another penlOn.

401

Possessing unauthorized amount of otherwise authorized clothing.

4102

Malingering, feigning illness.

403

Smoking where prolliblted

404

Using abusive or obscene language

405

Tattooing or seIf-mutilation

406

Unauthorized use of mall or telephone (Reslllctlon. or loss for a
specific period of time, of these privileges may often be an
appropriate sanction G) (May be categorized and charged in
terms of greater severity. according to the nature of the
unauthorized use: e.g.• the telephone Is used for planning,
facilitating. committing an armed assault on the instltution·s
secure perimeter, would be charged as Code 101. Assault)

407

Conduct with a visitor In violation of Bureau regulations
(Restriction, or loss for a SpecifIC period of time. of these privileges
may often be an appropriate sanction G)

«)8

Conducting a business

409

Unauthorized physical contact (e.g.• kissing. emblacing)

498

Interfering with a staff member in the performance of duties
(Conduct must be of the Low Modemte Severity nature.) This
charge is to be used only when another charge of low
moderate severity is not applicable.

499

Conduct which disrupts or interferes with the security or orderly
running of the institution or the Bureau of Prisons (Conduct
must be of the Low Moderate Severity nature.) This charge Is
to be
used only when another charge of low moderate
severily is not appficable

B.1 Disallow ordinarily up
to 12.5Cl!» (1·7 days) of
good conduct time credit
available for year (to be
used only where inmate
found to have committed
a second violation of the
same prohibited act within
6 months); Disallow
ordinarily up to 25Cl!» (1-14
days) of good conduct
time credit available for
year (to be used only
where Inmate found to
have committed a third
violation of the same
prohibited act within 6
months) (a good conduct
time sanctlon may not be
suspended).

E. Make monetary
restitution.
F. Wrthhold statutory
good time.
G. Loss of privileges:

commissary. movies.
recreation. etc.
H. Change housing

(quarters).
I. Remove from program
and/or group activity.

J. Loss or Job.
K Impound inmate's
personal property.
L. Confiscate contraband.

M. Restrict to quarters
N. Extra duty.
O. Reprimand.
P.Wamin.

Note: Aiding another person to commit any of these offenses, attempting to commit
any of these offenses. and making plans to commit any of these offenses, In all
categories of severity, shall be considered the same as a commission of the offense

itself.

APPENDIX-A

129

28 CFR § 541.13 - Table - 5

SANCTIONS FOR REPETITION OF PROHIBITED ACTS WITHIN SAME CATEGORY:

When the Unit Discipline Committee or DHO finds that an inmate has committed a prohibited
act in the Low Moderate, Moderate, or High category, and when there has been a repetition
of the same offense(s) within recent months (offenses for violation of the same code),
increased sanctions are authorized to be imposed by the DHO according to the following
chart. (Note: An informal resolution may not be considered as a prior offense for purposes of
this chart.)

lc7N Moderate
(400 series)

6 months

2nd offense

lc7N modenlte sanctions. plus

1. Disciplinary segregation, up to 7 days.
2. Forfeit earned SGT up to 10% or up to
15days,whl~ls~,

or dlsaJlow EGT

a~or~nn~e

(an EGT sanction may not

be suspended).

Moderate (300
series)

12 months

3rd offense or
more

Any sanctions available In Moderate (300)
and Low Moderate (<<>0) series.

2nd offense

Moderate sanctlons(A.C,E-N), plus
1. Disciplinary segregation, up to 21 days.
2. Forfeit earned SGT up to 37-112% or up
to 45 days, whichever is less, and/or
wm~ or disallow EGT (an EGT
sanction may not be suspended).

3rd offense or

Any sanctions available In Moderate (300)
and High (200) series.

more
High (200
series)

18 months

2nd offense

High Sanctions (A,C,E-M), plus
1. DlsclpIInary segregation, up to 45 days.
2. Forfeit earned SGT up to 75% or up to
90 days, whichever Is less, and/or terminate
or disallow EGT (an EGT sanction may not
be suspended).

3rd offense or

3rd offense, or more
Any sanctions
available In High (200) and Greatest (100)
series.

more

How 10 WIN Prison Disciplinary Hearings

130

28 eFR § 541.13 - Tahle - 6

SANCI10NS BY SEVERITY OF PROHIBITED ACT. WITII ELIGIBILITY FOR
RESTORATION OF FORFEITED AND WITIDIELD STATUTORY GOOD TIME:

Greatest
High

A·F
A·M

Moderate

A·N

Low

f·P

100%
50% or
60
days,
which
ever is
less.
25% or
30

Good time creditable fer single month

during which violation cccurs. AppRes to
all categories.

24 mos.
1amos.

18mos
12mos

60 days
30 days

12 mos.

6mcs

15 days

N/A (1st
offense)
6mcs.

3mos

N1A(1st
offense).
7 days

days,
Moderate

whlche
ver is

less.
N/A

(2nd

(2nd

offense
in same
category
within
six
months

offense)
15 days
(3Rt

offense).

Note.-Restoration will be approved at the time of initial eligibility only when the inmate
has shown a period of time with improved good behavior. When the
Warden or his delegated representative denies restoration of forfeited or withheld statutory
good time, the unit team shall notify the inmate of the reasons for denial. The unit team
shall establish a new eligibility date, not to exceed six months from the date of denial.
An inmate with an approaching parole effective date, or an approaching mandatory
release or expiration date who also has forfeited good time may be placed in a Communfty
Treatment Center only if that inmate is otherwise eligible under Bureau policy, and it there
exists a legitimate documented need for such placement. The length of stay at the
Community Treatment Center is to be held to the time necessary to establish residence
and employment.
[53 FR 197. Jan, 5,1988. as amended at 53 FR 40686, Oct. 17, 1988: 54 FR 38987.
Sept. 22, 1989: 54 FR 39095, Sept. 22, 1989.

APPENDIX-B

LIST OF CASES

131

APPENDIX-B
Table OfAutllorities
Cases
·28 CFR § 542.19
·Wolf

96, 98
•

B0I1hoiomew v Reed, 477 F Supp 223, 227 (D Or 1979), modified. 665 F2d 915 (9th Cir 1982)
................................................................................ 41
Balisla v Kuhlmann, 90 AD2d 934. 457 NYS2d 931 (1982) ........................•... 37
Mathews v Eldridge, 424 US 319 (1976) ... . . . . . . . . . . . . . .. . . . . . . .. .. .. . .. . .. .. . . . . .. 10 I
Rushing v State, 382 NW2d 141 (Iowa 1986)

49

U.S. v Austin, _ U.S._. 113 S.Ct 2801,125 L.Ed2d 488 (1993)

27

42 U.S.C. § 1983

114.115

42U.S.C.§1983

110

Adamns v Gunnell, 729 F2d 362 (5th Cir 1984)

21

Adams v Bunnell, 729 F.2d 362 (5th Cir. 1984)

11

Adams v Car/soli, 375 F Supp 1228 (ED ILL 1974), aff'd in part rev'd in part, 521 F2d 168 (7th Cir
1975)
54
Adams v Wainwright, 875 F2d 1536 (11th Cir 1989)

17

Adkins v Marlill, 599 F Supp 1510 (WO Olda 1988)

34

Adomo v Jones. 113 AD2d 973, 493 NYS2d 644 (1985)

52

Aikins v Lash, 514 F2d 55 (7lh Cir 1975), vacated, 425 US 947, modified on remand, 547 F2d 372 (7th
Cir 1976)
Alexanderv. Ware, 714 F.2d416. 419 (5th Cir. 1983)

20
7,10.13

Allen v Stale,418 NW2d 67 (Iowa 1988) . .. .. . . . . . .. . . . .. . .. .. .. . .. . .. . .. . .. .. . . .. . ... 18

A/vardo v Lefevre, II AD2d 475. 488 NYS2d 856 (1985)

40

Amezquita V Cough/ill, 169 AD2d 857,564 NYS2d 584 (1991)

28

Anderson v Fiedler. 798 F Supp 544 (ED Wis 1992)

10

Anderson v. Creighton. 483 U.S. 635,638 (1987)

115

Arcoren v Peters, 829 F2d 671 (8th Cir SO 1987) cerl den 485 US 987 (1988)

113

132

How to WIN Prison Disciplinary Hearings

AnllsteadvState. 714 F2d 360 (5th Cir 1983)

54

Annstead \' State. 714 F2d 360 (5th Cir 1983)

26

Avant v Clifford. 67 NJ 496. 341 A2d 629 (1975)

14, 15,23

Aviles v Scully, 154 AD2d 371. 545 NYS2d 847 (1989)

18

Balla v Idaho State Bd ofCorrections, 569 F Supp 1558 (D Idaho 1984)

20

Barfield v Brierlon, 843 F2d 923 (11 th Cir 1989) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14

Bames v leFevre, 69 NY2d 649. 503 NE2d 1022,511 NYS2d 591 (1986)
Bany v Whalen, 796 F Supp 885 (ED Va 1992)

40
20,26

Bartholomew v Reed, 477 F Supp 223, 227 (D Or 1979), modified, 665 F2d 915 (9th Cir 1982)
................................................................................ 25

Bartholomew v Reed. 477 F Supp 223. 229 (D Or 1979). modified, 655 F2d 915 (9th Cir 1982)
................................................................................ 52
Bates v Dalsheim, 90 AD2d 485. 454 NYS 2D 552 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17

Bailie vAlldersoll. 376 F Supp 402, 422 (ED Ala 1974)

55

Bailie vA"dersoll, 376 F Supp 402, 422 (ED Okla 1974)

55

Baxter v Pa1migiano, 425 U.S. 308 (1976)

BaxtervPalmigimlO. 425 US 308, 96 S Ct. 1551,47 LEd 2d 810 (1976)

15,20
29

Beela v. HIII/dley, 34 F.3d 658 (8th Cir. 1994)

121

Bell v Hood, 327 US 678, 66 S.Ct. 773.90 LE 939 (1946)

112

Bell v. Wolfish. 441 U. S. 520.99 S.Ct. 1861.60 L.Ed.2d 447 (1979)

3

Benitez v Wolff

18

Berch v Stahl, 373 F Supp 412 (WDNC 1974)

14

Bickham v Call1loll, 516 F2d 885 (7th Cir 1975)

55

Bill v Henderson, 631 F2d 1287 (6th Cir 1980)

16

Bivens v Six Ullkl/oWII Named Age"'" o/the Federal Bllreall o/Narcotics, 403 US 388, 91 SCtI999,
29 LE2d 619 (1971)
112
Black v OrowlI. 524 F Supp 856 (ND ILL 1981), rev'd in part &. atrd in part. 688 F2d 841 (7th Cir
1982)
SS
Black v Parker, 4 F 3d 442 (6th Cir 1992)

16

Blackshear v Coughlin, S86 NYS2d 34 (App Div 1992)

22

Blake v Conunissioner of Corrections. 390 Mass 537, 457 NE2d 281 (1983)

16

APPENDIX-B

133

LIST OF CASES

Bom,ey v Oregoll State Pellile11liary', COtTeCtiollS Div. 16 Or App 509, 519 P2d 383 (1974)

27

BOliO v Saxbe, 450 F Supp 934 (ED ILL 1978), affd ill pari, 620 F2d 609 (7th Cir 1980)

52

Bou,~eios

v Murphy, 809 P2d 472 (Idaho 1991)

35

Boyde V Cough/ill, 105 AD2d 532, 481 NYS2d 769 (1984)

41

Bradley v Stale, 473 NW 2d 224 (Iowa Ct App 1991)

40

Bradley v Slale, 473 NW2d 224 (Iowa Ct App 1991)

29

Brady V MOIylalld, 373 US 83, 83 S Ct 1194, 16 L Ed 215 (1963)

100

BradyvMOIylalld, 373 US 83, 83 S Ct 1194, 16 L Ed 215 (1963)

32

Bressmall v Fal71er. 825 F. Supp. 231 (NO IA 1993)

'

, 106

Brooks-Bey v Smith, 819 F2d 178 (7th Cir (987)

48

Brown v Coughlin, 165 AD2d 935, 561 NYS2d 99 (1990)

21

BrowlI v Fauver, 819 F2d 395 (3rd Cir 1987)

:

101

BrowlI v Fauver, 819 F2d 395 (3rd Cir 1987)

45

BrowII-EI v De/o, 969 F2d 644 (8th Cir 1992)

74

BrowII-EI v Delo, 969 F2d 644 (81b Cir 1992)

48

BrowII-EI v Delo, 969 F2d 644 (81b Cir 1992)

41

Brown-El v Delo, 969 F2d 644 (81b Cir 1992)

20

Bruce v Wllde, 537 F2d 850, 854 n9 (51b Cir 1976)

16

Bryallt v Miller, 637 F Supp 226 (MD Pa 1984)

52

Burballk v Twomey, 520 F2d 744 (71b Cir 1975)

50

Burk v Cough/ill, 97 AD2d 862, 469 NYS2d 240 (1983)

52

Bush v Lucas, 462 US 367, 103 S.Cl. 2404,76 LE2d 648 (1983)
Butz v Ecollomou, 438 US 478, 98 SCt 2894,57 LE2d 895 (1978)

, 112
114

Byerly v Ashley, 825 SW2d 286 (KYCt App 1991), cerl dellied, 113 S Ct 364 (1992) .. '.' . . . .. 37
Caill v Lalle, 857 F2d 1139 (71b Cir 1988)
Caldwell v Miller, 790 F2d 589 (7th Cir 1986)

105
12

Cole v JOIIIISOII, 861 F 2d 584 (2d Cir 1985)

, 106

Cole v Jolmsoll, 861 F2d 584 (2nd Cir 1988)

113

How to WIN Prison Oisciplinarv Hearings

134

Cale v. Johllsoll. 861 Fo2d 943 (6th Cir. 1988)

0

0

••

0

0

0

••••

0

•••••••••••••••••••

Cambell v Marqllelle Pri.fOlI Warden. 119 Mich App 377, 326 NW2d 516 (1982) ..
Campbell v Beto. 460 F2d 765 (5th Cir 1972 o'

0

0

••••

Campbell v Henman. 931 F2d 1212 (7th Cir 1991)

0

0

•

0

•••••

0

0

0

0

0

•••

0

0

0

•

0

0

•••••••••

Carlson v Green. 446 US 14. 100 S.CI. 1468.64 LoEd 2d IS (1980) .

0

•••

0

0

0000.

0

•

0

•

•

•

0

••••

0

0

•

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0

0

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0

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0

0

0

0

0

0

109

•

0

0

0

•

0

••

0

0

•••••••

•

Casper v A!arqllelle Pri.fOn Warden. 126 Mich App 271,337 NW2d 56. 58 (1983) .....

0

0

0

0

0

••

0

••

••

Castaneda v Henman•. 914 F2d 981 (7th Cir 1990), cert denied, 498 U.S. 1124 (1991)

54
52
112

•••

0

42

0

27
14

0

Caudle-El v Peters. 727 F Supp 1175 (ND ILL 1989)

20

Cluwis v Rowe, 64 F2d 1281 (7th Cir), cert den, 454.uS 907 (198l)

0

0

0

•

0"0

0

•••

0

0

••••••

0

0

••

0

0

0

••••••

0

••

Chavis v Rowe. 643 F2d 1281 (7th Cir). cert denied, 555 F Supp 137 (NO ILL 1982) ...
Chavis v Rowe, 643 F2d 128I (7th Cir). cert denied, 555 F Supp 137 (NO ILL 1982)
Chavis Vo Rowe. 643 F.2d 1281. 1287 (7th Cir. 1981)

0

••

0

0

0

0

0

Chochrek v Oregon State Penn. 21 Or App 406, 534 P2d 1175 (1975) ..

City Natl Bank v Vni/ed .\'tates. 907 F2d 536 (5th Cir 1990)
Clardy v Levi, 545 F2d 1241 (9th Cir 1976)

0

0

0

0

••••••••••

0

•

0

•••

0

•

0

Clark v Brewer. 776 F2d 226 (7th Cir 1985) ........

0

0

0

••

0

0

•••

0

•••

100
32

0

9, 31

••

0

•••

CIOIf v Sole",. 336 NW2d 381 (SO 1983)

0

0

0

0

•

..

..

•

•

0

25
94
41

0"

.......

48

•

•

..

•

•

•

•

..

0

••••••••

0

..

0

..

...

14
53

..

Clutchetle vs Pmcllnier. 510 F2d 613(9th Cir 1975). rev'd sub nom lJa-rter vs Palmigiano, 425 US
308( 1976)
58
0

0

0

0

••

0

0

••

0

0

0

0

••

"

"

"

"

"

•

0

"

•••••••••••••

0

0

0

••

0

•

"

Clutchette v Procunier. 510 F2d 613 (9th Cir 1975), rev'd sub 110m

Coats v Bechtel. 811 F2d 1045 (7th Cir Wis 1987) ..

0

0

0

. . . . .

Coffinan v Trickey. 884 Fo2d 1057 (8th Cir. 1989)

0

0

0

•

0

0

••

0

•••

0

0

0

0

0

0

0

0

0

0

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0

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0

0

0

0

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•

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•

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0

. . . . .

. . . . . .

0

Colbeth v Civile/li. 516 F Supp 73 (SD Ind 1980) ..

0

0

0

0

•

0

0

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0

0

0

•

0

0

0

0

. . . . .

0

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15,20
116

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0

0

..

0

0

0

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II
28

0

Coleman v Califomia Yearly Meeting ojFr;em/s Church, 27 CaJ.Appo2d 579, 81 P2d 469, 470
•••••

0

0

0

••••••••••••

0

0

•

0

•••

000

•••••••••••

0

0

Coleman v Turner. 838 F2d 1004 (8th Cir 1988) ..

Collings v King. 743 F2d 248 (5th Cir 1984)

00

..

0

0

••••••••••••••••••••

0

0

0

•••

0

0

0

0

0

0

0

Collins v Sill/ivan. 392 F Supp 621. 625 (MD Ala 1975) ....

••••••

0

0

•••

0

•

0

0

0

0

••••••••

0

0

0

0

0

114

0

20

0

54

0"

0

0

•

0

Collins v Bordenkircher. 403 F Supp 820 (NO Va 1975)
Collins v Hancock. 354 F Supp 1253 (DNH 1973)

0

0

•

0

0

..

.0

0

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•••••••••

0

0

0

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0

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0

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0

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0

0

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0

. . . . .

55
22
SO

APPENDIX-B

LIST OF CASES

Collins v Vitek, 375 F Supp 856 (DNH 1974)

135
10, 12,22,53

COllllllomvealtlJ v Brooks, 330 Pa Super 335,479 A2d 589. 594-95 (1984)

28

COlllmolllvealtlJ v Brooks, 479 A2d 589 (pa Super 1984)

28

Commonwealth v Casper Forte. No. 97548 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 102
COlmer v ReinlJard, 847 F2d 384. 396-97 (7th Cir 1988)

115

Conner v Saki, 15 F3d 1463 (9th Cir 1993)

4, 5

Conner v. Sakai. 15 F.3d 1463 (9th Cir. 1993)

I

Cook v Teax.s Dept ojCrillllllJustice, Plallnillg Dept, 37 3d 166 (5th Cir 1994)

115

Cooper v Lalle. 969 F2d 368 (7th Cir 1992) . . . .. . .• . . . . . . .. .. . . . . . . .. . .. . . . . .. . . . . . . .. 48

Cooper v Sheri1T, 929 F2d 1078 (5th Cir 1991) .. . .. . . . . . . . .. . . . . . . . . . . . . . . . . . .. .. . . . . .. 18
Cortez v Coughlin. 67 NY2d 907,492 NE2d 1225,501 NYS2d 809 (1986)

25

CroftOl' v Luurel, 378 F Supp 521 (MD Tenn 1974)

50

Craig v Hocker. 405 F Supp 656 (D Nev 1975)

20

Crooks v Warne. 516 F2d 837 (2d Cir 1975)

5

Cruz v Beto, 405 US 319.321 (1972)

52

Cummillgs v Caspari. 797 F Supp 747 (ED Mo 1992)

54

Dagle v Helgcmore, 399 F Supp 416 (DNH 1975)
Daigle v Helgemoe. 399 F Supp 416 (DNH 1975
Daltoll vs

HUIIO,

71 F2d 75 (4th Cir 1983)

14,15
19
74

Davis vAlldrews, Tex.Civ.App.• 361 S.W.2d 419. 423

43

Davis v AIIdrews, Tex.Civ.App.• 361 S.W.2d419.423

102

Dawes v Leonardo, 167 AD2d 585. 563 NYS2d (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Devaney v Hall, 509 F Supp 497 (D Mass 1981)
Dewyerv. Davis. 842 F. Supp. 1304 (WD WA 1993)
Diercks v Durham, 959 F.2d 710 (8th Cir. 1992
Dixoll v. BroWlI, 38 F.3d 379 (8th Cir. 1994)

16
7
. . . . .. . .. . . . .. . . . . .. . . . . . . . . 21
106

Douglas v California, 372 US 353 (1963); . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
Dowdy v Johnson, 510 F Supp. 836 (ED Va 1981) . . . . . .. . . . .. .. . . . .. . . . .. . . .. . . . . .. . ... 16
DraytOl' v Robillsoll. 519 F Supp 545 (MD Po 1981) . . . . . . . . . . . . . . . . .. . . . .. . . . . . .. .. . . .. 55

How to WIN Prison Disciplinnrv Hearings

136

Drayton v Rohinson. 719 F2d 1214 (3rd Cir 1983)

,

, .. ' .. 16

Dudly v Stewart. 724 F2d 1493 (11th Cir (984)

, 14

Dwm v White. 880 F2d 1188 (10th Cir 1989), ccrt denied. 493 U.S. 1059 (1990) . , , . ,

, 13

Dyson v Kocik. 689 F.2d 466 (3rd Cir. (982)

44

Edwards v Whil~. 50 I F Supp 8 (MD Pa 1979), affd, 633 F2d 209 (3rd Cir 1980) , ..... , .. , ,. 105
Edwards v White, 501 F Supp 8 (MD Pa 1979), affd, 633 F2d 209 (3rd Cir 1980)

Elkill v

Fallv~r,

12

969 F2d 48 (3rd Cir). c~,., d~IIied, 113 S Ct 473 (1992)

,

Elkill v Fallv~r, 969 F2d 48 (3rd Cir 1992)

, , . , , , ,37

,.".,.......... 54

Eng v CoughJin, 858 F.2d 889 (2nd Cir. 1988)

,

'

.',' ',' . , ,

Ellgel v Wendl, 921 F2d 148 (8th Cir 1991)

', ,

19

,

Ellgelv Wendl, 921 F2d 148 (8th Cir 1991)

,

101

'

Evans v State, 485 So 2d 402 (Ala Crim App (986)

,

45

,,

42

Exparle Floyd. 457 So 2d 961 (Ala 1984)

, .. , .. 40

Ex parle Hawkill.f, 475 So 2d 489 (Ala 1985) ,

, .. ,

0

49

Fellowship Bapl;'fl CIIIIIl::Ir v Bentoll, 815 F2d 485 (8th Cir Iowa 1987), 011 remand 678 F Supp 213 (SO
Iowa 1988)
,
,,
116
0

0

•

0

0

0

••••••••••••••••••••••••

0

•

,

•••

Fielding vSla/~, 409 So 2d 964 (Ala Crim App (981)

0

0

0

, , . , , .. 49

Filll,ey v Mabl)'. 455 F Supp 756 (ED Ark 1978)

, 49, 50

Flowers v Plrelpof, 595 So 2d 668 (La Ct App 1991)

, 50

F{ythe v Davis, 407 F Supp 137 (ED Va 1976)

,

F{ylhe v Davi,f, 407 F Supp 137 (ED Va 1976)

,

, . 55

, . . . . .. . . . . 41

Forbes vs Trigg, 976 F2d 308 (7th Cir 1992). c~rt dellied, 113 S Ct 1362 (1993)

,,

74

FordvCollllllissionerojC017-eCli(lII, 27 Mass App 1127,537 NE2d 1265 (1989), review dellied, 405
Mass 1202, 541 NE2d 344 (1989)
,
49
0

•

0

•••••••••••••

0

0

o.

Ford v Conunis.c;ioncr of Corrections. 27 Mass App 1127, 537 NE 2d 1265 (1989), l-eview denied, 405
Mass 1202, 541 NE2d 344 (1989) ,
,
21
0

,

•

FostervColighlill, 156 AD2d 806. 549 NYS2d 223 (1989). appeal granted, 75 NY2d 709, 555 NE2d
" o. 40
619,556 NYS2d 247. aJTd, 76 NY2d 964. 565 NE2d477, 563 NYS2d 728 (1990)
0

Frallco v Kelley. 854 F.2d 584 (2nd Cir. 1988)

,. ,,

Franco v Kel(v. 854 F.2d 584. 589 (2nd Cir. 1988) .....
Franco v Kel(l'. 854 F2d 584 (2d Cir 1988)

0

••••••

,.,
0

••

0

106

0

,

0

•••••••

•••••••••

,

,

0

•

0

••••

0

0

••••••••

,

••

107

o. 105

APPENDIX-B

137

LIST OF CASES

Franco v. Kelley, 854 F.2d 584 (2nd Cir. 1988)

109

Franco v. Kelly, 854 F.2d 584 (2nd Cir. 1988)

108

Franco v. Kelty. 854 F.2d 584. 589 (2nd Cir. 1988) . . . . . . . . . . . . . . . . .. . . .. .. . . . . . . . . . . .. 108
Franco v. Kelty. 854 F.2d 584, 589-90 (2nd Cir. 1988)

106

Franklin v Israel, 558 F Supp 712 (WO Wis 1983)

49

Frazier v Dubois, 922 F2d 560 (lOth Cir 1990) . .. . . . . . . . . . .. . . . . . . . . . . . . .. . . . . . . .. . . . .. 17

Frazier v. Coughlin, 850 F.2d 129, 130 (2d Cir.1988)

0

38

0

Freeman v Rideout. 808 F.2d 949 (2nd Cir.1986)

107

Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986)

108

Freemall v. Rideout. 808 F.2d 949, 951 (2nd Cir. 1986)

108

Freema" Vo Rideout. 808 F.2d 949, 951-53 (2nd Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 108
Frielas v Auger, 837 F2d 806 (8th Cir 1988)

0

Frietes v Auger, 837 F 2d 806, 810-11 (8th Cir 1988)

Galimore v Lane, 635 F Supp 1367 (NO ILL 1986) .

0

••••

43
27

0

Frost vs Railroad Com""" 271 US 583(1962)
Gagnon v Scarpelli, 411 US 778, 790 (1973)

•••••

0

••••••••••

0

0

0

0

•

0

••••••••••

60
20

0

26

0

Garcia v Sillgletmy, 13 F. 3d 1487 (11 th Cir. 1994) .. .. . . . . .. . . . . . . . . . . .. . .. . . . . .. .. . . .. 29
Gardner vs Johnson, 429 F Supp 432 (ED Mich 1977)

0

..

..

..

•

•

•

•

61

Garfield v Davis, 566 F Supp 1069 (ED Pa 1983) .. . . . . .. . . . .. . . . . .. . . . . . . . .. . . . . .. . . . .. 17

Gmfield v Davis, 566 F Supp 1069; Pearsall v Townsend, 362 F Supp 207 (DSC 1973)

51

Gan1ty v New Jersey, 385 US 493(1967)

60

0

Gaston v Taylor, 918 Fo2d 25 (4th Cir. 1990)

10,13

Gates v Collier, 454 F Supp 579 (NO Miss I978),atrd, 606 F2d 115 (5th Cir 1979)
Giano v Sullivan, 709 F Supp 1209 (SONY 1989)

Gibbs v Hopkins, 10 F3d 373 (6th Cir 1993)

0

0

0

•

..

•

•

..

•

•

•

•

..

•

..

..

21
•

0

Gibbs v King, 779 F2d 1040 (5th Cir 1985), cert denied, 476 US 1117 (1986) .

..

..

..

•

106

0

0

•••

o'

18

0

••••

10, 12

Gibsoll v Roush, 587 F Supp 504 (WO Miss 1984)

54

Gibson v Roush, 587 F Supp 504 (WO Miss 1984)

26

Gick v Sargent, 696 F2d 413 (8th Cir 1983)

21

J38

How to WJN Prison Disciplinary Hearings

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

0

8

0

Gilliard v Oswald. 552 F2d 456 (2d Cir 1977)

55

Gilmore v Lane. 635 F Supp 1637 (NO ILL 1986)

0

Gloria v Miller. 658 F Supp 229 (W.D. Okl 1987) .

0

•••

0

0

..

0

0

0

0

53

0

••••••••••••••••••••••••••••••••••••

28

GoffvDailey. 789 F Supp 978 (SD Iowa 1992). affdin parI. rev'd in part. 991 F2d 1437 (8th eir J993)

IOJ
GoffvDailey. 789 F Supp 978 (SD Iowa 1992). affd i" pari, rev'd in part. 991 F2d 1437 (8th Cir 1993
)45

GoJJvDailey, 789F Supp 978(SD Iowa 1992), affd ill parI, rev'd in part. 99J F2d 1437 (8th Cir J993
)44

Goldberg v Kelley. 92 S.Ct 1011 (1972)

0

•••••••••••••

Gonzales v Lefevre. 105 AD2d 909. 482 NYS2d 409 (1984)
Gotcher v. Wood. 66 F.3d 1097 (9th Cir. J995)

0

•••••••••••••••

0

0

••••••••

Grant v Senkowski. 146 AD2d 948. 537 NYS2d 323 (1989)

0

Gra,,' v State, 154 Gn App 758. 270 SE2d 42 (1980)

0

Groyned v City of Rockford. 408 U.S. 104 (1972)

••••

0

••

0

0

0

0

••

0

0

•••••

6, 7

•••••••••

o. 10
J4

0

5

0

0

0

•

..

..

•

•

•

•

..

•

•

••

Green v Secretary ofPublic Safety. 68 Md App 147,510 A2d 613 (1986)
GriJfm v Illinois, 351 US 12. (1956)

0

0

Grillo v COllghlill. 31 F.3d 53 (2nd Cir. 1994)

0

0

•••

0

•••

0

Hampson v Satrin. 319 NW2d 796 (NO J982)

Ha"ki"s v. FilIP".>!. 964 F.2d 853 (8th Cir. 1992)

0

0

....

0

•

•

•

•

•

•

•

•

0

•••

0

•

0

••

0

0

•

0

0

••••••••••

Hanra" v La"e. 747 F2d 1137 (7th Cir 1984)

•

•

..

0

•

•

•

•

•

•

..

..

••

0

..

..

..

•

•

...

0

•

•

•

•

•

•

•

•

•

•

•

••

24
J21

0

53
49

Hargrove v Dept ojCo/7-ectiolU. 60 I So 2d 623 (Flo Dist Ct App J992)
••••

108

10, J2

0

00

J9
32

0

••••••••

•

•

0

Hardwick v AlIlt, 447 F SUPP 116 (MD Go 1978)

Harlowv. Fitzgerald. 457 U.S. 800. 806-07. 813-14 (1982)

•

0

•••••••••••••••••••••

0

24
5

Grillo v. Coughli", 31 Fo3d 53. 56 (2nd Cir.1994)
HamiJton v Love. 358 F Supp 338 (ED Ark 1973)

22
29

0

Green v Secretary ofPuhlic Safety 68 Md App 147,510 A2d 613 (1986)

Green v Nelson, 442 F SUPP 1047 (D Conn 1977) .

24.25

0

0

0

0

0

0

0

Green to Word \' Johnson. 667 F2d 1126 (4th Cir J981)

•••

22

0

•••••••••

0

0

•••••••

••••••

0

••••

4J
115

139

LIST OF CASES

APPENDIX-B
Han'is v MacDol/ald, 555 F Supp 137 (NO ILL 1982)

0

Hal1'is v.MacDol/ald, 555 F Supp 137 (NO ILL 1982).
Hal1'iSOIl v Dahm, 911 F2d 37 (8th Cir 1990) ...
Hayes v ThompsolI, 637 F2d 483 (7th Cir 1980)

0

0

0

••••••••••••••••

0

•

••••••

0

0

•••••

0

•••••

•

0

0

0

••••

0

•

0

0

0

0

•••

•••••

0

•••••••

Hayes v Walker, 555 Fd 625 (7th Cir). cert dell, 434 US 959 (1977) .
••••••

0.0.

Heilllstra v Walter, 117 Mise 2d 245. 457 NYS2d 704 (1982) .

••

0

0

0

•

0

•

••

0

0

••••••

••••••

0

0

•••

0

••••••

0

0

0

•

0

•••••••

•

•

0

0

0

•

0

••••••

•••••••••

•

100

•

0

•••

0

0

••••••

0

0

0

0

0

0

0

o' ...

•••••••••••

0

0

0

0

0

o.

•••••

0.0.

Hayes v Walke,., 555 F2d 625 (7th Cir). cm dellied, 434 US 959 (1977) ...

Heckv. Humphrey, 114 SoCt. 2364 (1994)

0

0

0

••

••••••

•••••••••••••

0

34
28
49
48
6

00

••••

32

0

•

0

0

•••••

52

Hendrix v Faulkner. 525 F Supp 435. 447 (NO Ind 1981). affd iI/ pari, vacated ill part, 715 F2d 269
(7th Cir 1983), cel·t dellied, 468 US 1217 (1984)
20
0

Hensley v Wilsoll, 850 F2d 269 (6th Cir)

0

0

•••••••••

0

0

0

•••••••••

Hellsley v Wilsoll, 850 F2d 269. 276·277 (6th Cir 1988) .

0

•

0

•

0

0

0

•••

0

•

o'

••••••••

0

0

Hewett v Helms, 459 US 460, 103 SoCt. 864.74 L.Ed2d 675 (1983) .....

Hewitt v Helms, 459 US 460 (1983), rev 'd. 482 US 755 (1987) .

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Higgs v Wilsoll, 616F Supp226(WDKy 1985). vacated, 793 F2d 1291 (6th Cir 1986); Nash
v Thielke. 743 F Supp 1301 (ED Wis 1990)
37
Higgs v Blalld. 888 F2d 443 (6th Cir 1989)
36
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Constitutional Provisions

Regulations

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Rules Of Court Procedure

Miscellaneous

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140

How to WIN Prison DiscipJinarv Hearings

• • • • • • ·Hi1!J!.f v Blalld. 888 F2d 443 (6th Cir 1989)
Hilton v DlIlshcim. HI AD2d R~7. 439 NYS2d 157 (1981)

34
21,25

Higgs v Blalld, 888 F2d 443 (6th IDtl-IlD88).r Dalsheim, 81 AD2d 887. 439 NYS2d 157 (1981)21,24
Hilles v. Gomez, 853 F. Supp. 329 (NO Cro9AB9Ai) v Coughlin. 583 NYS2d 703 (App Div 1992)35
Homer v Morris. 684 P2d 64 (Utah 1984)24HoIISlill v. Lack. 487 US 266, 108 S Ct. 2379 (1988)51
Howard v Grinage. 6 F 3d 410 (6th CiW}~l)rd v Kelly, 117 AD2d 1002,499 NYS2d 547 (1986)23
Howard v Wilkersoll. 768 F Supp 1002 (SDNY 1fjDIJudsoll v Hedge. 27 F3d 274 (7th Cir 1994)120
Hughes v Rowe. 101 US 17351VIlJoti6DV Smith, 112 Mise 2d 484. 447 NYS 2d 226 (S. Ct. 1982)12
HullO vs FiIlIlY, 437 U.S. 678. 98 S. Ct. 1J8lijI{llfJI7~'f.o,.d, 148 AD2d 453, 538 NYS2d 951 (1989)40

In re Gault, 387 US I (1967)

19111 re Lamb, 34 Ohio App 2d 85, 296 NE2d 280 (1973)28

In re Plunkett, 57 Wash App 230. 780 P2d 1090 (1~, Re Johnslon. 745 P2d 864 (Wash., 1987)34
i,fl6Inko,~9 tl:Pt>:mI'BB..1J:tli1lma.2Z~19nl1

Rcptr 324 (1985). cer1 denied, 476 US 1152

(1986
)5

Ingraham v. WriJ!hl, 430 lJ. S. 651 (1977)3Irby v Young, 139 Wis2d 279, 407 NW2d 314 (1987)17
in re Lamb, 34 Ohio App lara6k~~JiliOJ(,lrog]vlisc 2d 437,440 NYS2d 154 (S.Cl. 1981)24

Jacob v WillCh, 121 AU2d 446. 56llh1168aj'l4 .,7CfWB61in, 99 AD2d 635, 472 NYS2d 195 (1984)37
Jensen v Satran, 332 NW2d 222 (NI!llJ8IKiI)kin v Racette, III AD2d 579,489 NYS2d 643 (1985)20
Johnson v Vitek. 205 Neb 745. 290 N~JJIiHb("'!S~)Schoemehl. 878 F.2d 1043 (8th Cir. 1989)109
Jones v Marquez, 526 F Supp 871 (D KdiDJ~v Smith, 116 AD2d 993,496 NYS2d 712 (1986)25
Joseph v Huslad COIp., 454 P2d 916, 918. .... 118Kastigar v United States, 406 US 441 (1972)24

APPENDIX-B

141

LIST OF CASES

Keellall v VallOchtell, 136 Mich App 364, 356 ~4@~~~x, 19 F 3d 1060 (5th Cir 1994)12
Kelly v Brewer, 525 F2d 394 (8th Cir 1975) ..... 54KeUy v Brewer, 525 F2d 394 (8th Cir 1985)15
Kelly v Nix, 29 ~~(llQ€ WlB)mpson, 490 US 454, 109 S.Cl. 1904, 104 L.Edo2d 506 1989.
.......................................
105
Kimball v Scotts, 1993 WL 455266 (DJliinI16i1a)v Coughlin, 86 AD2d 893, 447 NYS2d 521 (1982)
24
.0

•••

00

••

0

••••••••••••••••••••••••••••••••••••••

King v Hilton, 525 F Supp 1197 (ONJ 1981)
•••••••••••••••••••

0

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0

•••••••

0

000

•••••••••••••••••••••••••••••

5I Killg v Wells, 760 F2d 89 (6th Cir 1985)
16

•••••••••••••••••••••••••

0

•••

0

•••••••••••••••••••

Killg v Wells, 760 F2d 89 (6th Cir 1985Jl3Killgsley v Bureau ofPriS01lS, 937 F 2d 26 (2nd Cir 1991)
................................................................................ 40
Killgsley v Bureau ofPriSOllS, 937 F2d 26 (2d CirJ1m1.lqellig v Vallnelli, 971 F2d 422 (9th Cir 1992)
................................................................................ 55
Kvitka v Board ofRegistration ill Medicine, 407 MH}f,j& fI888t)ny, 677 F2d 1386 (lith Cir 1982)

................................................................................ 58
Kyle v Hanbeny, 677 F2d 1386 (lIth Cir 1982) .. 40LaBatt v Twomey, 513 F2d 641 (7th Cir 1975)
19
•••••••••••••••••••••••••••••

0

0

0

••••••••••••••••••••••

,

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0

••••

Lamoureux v Superilltelldellt, 390 Mass 409, ~U"RQj.9f8? 333 F Supp 621 (ED Va 1971)
25
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••

0

••••••

000

••••••

Landmall v Roystel; 333 F Supp 621 (ED Va IInlJ>,dmall v Royster, 333 F Supp 621 (ED Va 1971)
................................................................................ 47
Lalldmall v Royster, 333 F Supp 621 (ED Va 1971). 5Langleyv Scurr, 305 NW2d 418 (Iowa 1981)
3
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••

0

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Lathrop v Brewer, 340 F Supp 873 (SO Iowa 197P.1Lavil,e v Wright, 423 F Supp 357 (D Utah 1976)
36
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0

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Law v Racette, 120 AD2d 846, 50 I NYS2d 959 (198~Layton v Beyer, 953 F2d 839 (3rd Cir 1992)
50
••••••••••••••••••••••••••••••••

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00

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0.000

••••••••••••

Lewis v Israel, 528 F Supp 960 (ED Wis 1981) ..... 37Lewis v Lalle,882 F2d 1171 (7th Cir 1989)
................................................................................ 26
Locks v Three UllidelltIJDiifjUltlJ1l1ilioonWoIJaJghw/rlS8,Ep8rIppti54Ua:nZ/l1rr19S1=l 1148 (1982)
............................................................................... , 18

Loggins v Delo, 999 Fo2d 364 (8th Cir. Il!HiIPpez v Smith, 105 AD2d 1124, 482 NYS2d 583 (1984)
................................................................................ 55
Lowrance v Coughlin, 98 AD2d 733, 469 m51dliAB~~3Jehtyl, 20 F.3d 529, 537 (2nd Cir. 1994)
114
000

••••••••••••••••••••••••••••••••••••••••••••••••••••

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Maldonado Santiago v Velazquez Garcia, 821' F2d 821l4Mbli!Jri~p, 822 F2d 812 (8th Cir 1987)
53
••••••

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00

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Malik v Ta"ner, 697 F Supp 1294 (SDt8llD8ftl v Oalsheim, 97 AD2d 545,467 NYS2d 903 (1983)
54
••••••••••••••••••

0

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142

How to WIN Prison Disciplinary Hearings

Mapp vs Ohio, 367 US 643 (1961)

15Martino v Carey, 563 F Supp 984 (D Or 1983)
................................................................................ 54

Massachusetts ConY!ctio"allistl0JAiiWpBlIlSf4tilB}lil~isc 2d 910, 487 NYS2d 925 (S.Ct 1985)

................................................................................ 35
Massop v Lefevre, 127 MiI;b\ld&1'ti~itiNS'ild~S"$([fJ;98SJl8 S Ct. 150, 20 L Ed2d 381 (1968)

................................................................................ 55
Mathews v Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L EdSldAtB/fd9je,)Eldridge, 424 US 319 (1976)
................................................................................ 48
Mathis v U.s., 391 U.S. 1,88 S.Ct. 1503 (1968) .. 33Mays v Mahone}'. 23 F.3d 660 (2nd Cir. 1994)

................................................................................ 41
McCann v Coughlin, 698 F2d 11~~d~Bl»1aJann v. Coughlin. 698 F.2d 112,121 (2d Cir.1983)

......................................................... ,

27

McCans v Annour and Co.. 254 F2d 903. 49McC01*le v. Walker. 871 F. Supp. 555 (ND NY 1995)
................................................................................ 26
McDonnell v Wolff, 483 F2d 1059 (8th Cir 1973), aJJ'd in part & rev 'd in part, 418 US 539 (1981)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14McGiII v Coughlin, 583 NYS2d 702 (App Div 1992)

................................................................................ 27
McGinnis v Stephens, 543 P2d 1221, 1231 n28(MMk6HdHi9)1 Stevens. 543 P2d 1221 (Alaska 1975)

............................................................................. 46,47
Mc/l,'osh v Calter, 578 F Supp 96 (WO Ky 1983)S2McKinney v Meese, 83 I F2d 728 (7th Cir 1987)

................................................................................ 28
McKinnon v. Patterson, 568 F.2211~6um&(~liia~t, 29 Mass App 122, 558 NE2d 5 (1990)
................................................................................ 42
Meacbwn v Fano, 427 U.S. 215, (1976)
40Meachwn v Fano, 520 F2d 374 (1st Cir 1975)
................................................................................ 20
Meachwn v. Fad6M2t7ciJ&.81J~Ur)le Prison Warden, 117 Mich App 794, 324 NW2d 507 (1982)
................................................................................ 53
Meis v Gunter, QOc\J!a.b164r~Bi,r719~ 1287 (7th Cir 1985), cerl denied, 476 US 1142 (1986)
............................................................................... 113
Mendoza v Milld~t6dl LoZWl/(iltJiXIft B'983~&i,flt'IvWirJ).ft6J,J&dtktit{~89)6 US 1142 (1986)
............................................................................... 106
Me'ldoza vMiII46j.Ti8£!d "JIliI~1\1i7cro-nm3~~l(ll.RJaiJt86)US'lItbWJ(~89)6
US 1142 (1986)

................................................................................ 25
Mendoza v Miller, 779 F2d 1287, 1295 (7th Cid ()88ii)ldDza/wnMill&1VS791R241mRil) (7th Cir. 1985)

................................................................................ 16
Merioalher v Coughlin, 879 F2d 1037 (2nd C2!~t v De Los Santos, 72 I F2d 598 (7th Cir 1983)

................................................................................ 41
Minsv Sharp, 744 F2d 946 (3rd Cir 1984)
21MirandavArizona, 384 US 436 (1966)
................................................................................ 61

APPENDIX-B

LIST OF CASES

143

Milchell v Dupnik, 95 C.D.O.S. 7572(Calif. App Cl5Mln5)ell v Hicks, 614 F2d 1016 (5th Cir 1980)
................................................................................ 52

MOlle11 v Depal1melll ofSocial Services, 43!S0471M&(dj)vaYcNammlJ, 606 F.2d 621 (5th Cir. 1979)
................................................................................ 36

Moody v McNamara, 606 F.2d 621 (5th Cil9N1ijtlJes v California DOC, 16 F3d 1001 (9th Cir 1994)
................................................................................ 21
Morales v. California Department of Correction, 57 CrL 2021. April 26, 1995, 1995 WL 236551 (US
)45Morgan v Districl of Columbia. 647 S Supp 694 (DDC 1986)
................................................................................ 29

Morgall v Lavalle, 526 F.2d 221 (2nd Cir. 1975)

52Morrisey v Brewer. 93 S.Cl2593
................................................................................ 73

Morrisoll v Lefevre, 592 F Supp 1052 (SDNYJ8».B4-risoll v Lefevre. 592 F Supp 1052 (SDNY 1984)
................................................................................ 22

Mon'issey v Brewer, 408 US 471\QiM/i19'iH1i)v Commissioller ofDOC. 529 F.2d 272 (2nd Cir.1976)
................................................................................ 53
Murray v Slale. 116 Idaho 744. 779 P2d 416~t~~.338 So 2d 1128 (Fla Dist Ct App 1976)
·
27.50.99
~1S1eWJisa}990J:'oughlin, 110 AD2d 981. 488 NYS2d 273 (1985)
................................................................................ 42

Nash v Thielke, 743 F Supp 1301

Nigro v. Sullivall, 40 F.3d 990 (9th Cir. 1994)
53Nigro v. Sullivan. 40 F.3d 990 (9th Cir. 1994)
................................................................................. 7
Nix v Evatt. 850 F. Supp.2J45l(fil i~. 461 US 238 (1983); 103 S Ct 1741,75 L 2d 813 (1983)
·
15, 16
Olim v Wakinekona, 461 US 238.103 S.Ct. 1741, 75 L.5Illd.gWlVl~~ F2d 318 (11th Cir 1987)
................................................................................. 2
Pace v Oliver, 634 F2d 302 (5th Cir 19811l3Palmigiallo vs Travisallo, 317 F Supp 776 (ORI 1970)

· . . . . . . • . . •. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ••• . . • . . •• I 1
Palmigiano v Baxter, 487 F2d 1280 (1st Cir 1973), rev'cUP.hidDS \J~Qt~~7 F2d 21 (I st Cir 1984)
................................................................................ 26
Parker v Cook, 642 F2d 865 (5th Cir 1981). 27ParkervState, 597 So 2d 753 (Ala Crim App 1992)
·
100
Parrat v Taylor, 451 U.S. 527,101 S.Ct. 1908 (~lerson v Coughlin, 905 F2d564 (2d Cir 1990)
48
·

Patterson v Riddle, 407 F Supp 1035 (ED Va 1976), affd withoul opinioll, 556 F2d 574 (4th Cir 1977)
9Payne v. Axelrod, 871 F. Supp. 1551 (NO NY 1995)
............................................................................... 106

Pearsoll v Towllselld, 362 F Supp 207 (DSC 1973) 21Pella v Adams, 638 F Supp 94 (D Nev 1986)
................................................................................ 15

144

How to WIN Prison Disciplinary Hearin@s

Pella v Adams, 702 F Supp~jllHie'l'el'9J)~ina3lJ5StiPl2d19"2, 482 NYS2d 6 I9 (1984)
...................................................................... :
4
People ex rei Corcorall ifIDuiJpM 06~t~MJI4-69lblJl~~W81142, 482 NYS2d 618 (1984)
·
I IS
People ex rei Vegtfi~~ hlJr'1ldtiU9mltffi ~:D,5tEli'HEi!a:mm j8S)NYS2d 332 (1985)
............................................................................... 106

People ex reI Yoder v Hardy, 116 ILL APlAD~4lIhl;ffiaMi6l(~~S3, 386 NW2d631 (1986)
................................................................................. 3

PerQlrzo v Cough/ill, 608 F Supp 1504 (SDNY I ~rQlrzo v Cough/ill, 850 F2d 125 (2nd Cir 1988)
................................................................................ 105
Plrelps v U.S. Federa/ Govel71melll, 15 F3d 735 (8th ~ v State, 339 NW2d 368 (Iowa 1983)
................................................................................... 42
Pillo vs Da/sheim,605 F Supp 1305 (SDNY 19M;,o v Da/slreim, 605 F Supp 1305 (SD NY 1984)
................................................................................ 48

Pitts v Kee, 511 F Supp 19~~&lt~1R88H71 U.S. 491, 495,105 S.Ct. 2192, 85 LEd 2d553 (1985)
............................. ,

18

Powell v Ward, 392 F S»pJJmi8tiIJmfl)tiJ:fJSuPifliaJ~4J~tWU()4Xf12ll97m) (2ndCir 1976)
................................................................................ 37

Pratt v Row/alld, 770 F Supp 1399 (ND Cal 12Ifflratt v Rowland, 856 F Supp 565 (N.D. Calif 1994)
51
·
Preiser v Rodriguez. 41 I US 475
5 IProck v District Court, 630 P2d 772 (Okla 1981)
................................................................................ 19
Procunier v Martinez. 416 U.S. 396, 94 S Ct. 1800, 4(lIZ<1f.dQ!ld.,z~7~ F2d 1521 (9th Cir 1985)
.............................................................................. 2.14
QUiWilDRlli'DiJw/lm~tDl55SUP~<2'~I?J"8'Y,218

1152; 106 S.Ct 2266, 90 L Ed 2d 711 (1986)

Cal Reptr 324 (1985), cert denied 476 U.S.
25

Ramirez v Turner, 991 F.2d 351 (7th Cir. 1993) 60Rallsom v Davies. 816 F Supp 681 (D Ken 1993)
............................................................................. 20.23

Reed v Parrott, 207 Neb 796 , 301 NW2d 343 (198U(jReeves v Pettcox, 19 F 3d. 1060 (5th Cir 1994)
·
,
14.15
Reeves v Pettcox, I 9 F.3d 1060 (5th Cir. 1994)
·

40ReevesvPencox,19F3d.I060(SIhCir 1994)

116

Reinhard v Lawrence J..amhhrmiG~Ml81oM(Jp2\ta~<007, ItldSlDl\PPJlll741, 107 P2d 501, 504
................................................................................ 55
Riclrardsoll v Department ojlllterior, 740 F SupplDB{D'dj>Ci>.~, 893 F. Supp. 709 (ED MJ 1995)
................................................................................ 51
Rios v Lane, 812 F.2d 1032 (7th Cir. 1987) . . . . . . .. 37Rivera v Toft, 477 F2d 534 (lOth Cir 1973)
................................................................................ 37

APPENDIX-B

LIST OF CASES

145

Rodgers v Thomas, 879 F2d 380 (8tH~)r Wainwright. 474 So2d 1263 (Fla Dist Ct App 1985)
101
·
19~Rowe v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994)
................................................................................ 99

Rogers vOeslreich, 736 F Supp 964 (ED Wis

Ruckerl v Jo/msoll, 724 F Supp 568 (NO ILL 1989) 24Rudd v Sarge"" 866 F2d 260 (8th Cir 1989)

·

18,52

Rudd a~Mta66IF~c1(JJ(81,hl tI:iiS1S8~Jth Cir), modified, 688 F2d 266 (5th Cir 1982), cel'l
36,38
dellied, 460 US 1042 (1983)
K1IUlIJl!WlmliJiltjiifi0 BJ€89k~lirJJJf;mg1tF7~upp 476 (WD Vn), a./f'd withoul Opillioll, 530 F2d 969

(4th Cir 1975)

29

Russell V Scully, 782 F Supp 876 (S.D.N.Y. 1993), ~altiIF9d'3'9t2iimd.~ (7th Cir 1987)
................................................................................ 74
Sallchez vSmilh, 115 AD2d 285, 496 NYSI!H)A&liOl't)~er, 63 L.W.

4601~ 115 S.Cl2293 (1995)
................................................................................ 18

Sands V Wainwright, 3S7 F Supp 1062 (MD Fin), vacated 491 F2d 417 (5th Cir 1973)
............................................................................... 24,
99Salllls v Waillwrighl, 357 F Supp 1062 (MD Fin), vacaled, 491 F 2d 417 (5th Cir 1973), cerl
5,21,22
dellied, 416 US 992 (1974)
ScQlpa v POllle, 638 F Supp 1019 (D Mass

·

IP8~SScalpa

v POllle, 638 F Supp 1019 (D Mass 1986)

41

Schere v Ellgelke, 948 F2d 921 (6th Cir 1991)7Schmerberv Calijomia, 384 US 757, 760-61 (1960)

·

liS

Sc/meck/olh vs Buslamollle, 412 US 18(1973)
52800tt v Kelly, 962 F2d 145 (2d Cir 1992)
· . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. II
Sczderbaly v Oswald. 341 F. Supp. 571 (SD NY I gm;llers v Roper, 554 F Supp 202 (ED Vn 1982)
................................................................................ 44
Sellers v Roper, 554 F Supp 202 (EI] M'i,lli82y Coughlill, 182 AD2d 928, 582 NYS22d 302 (1992)

............................. ,

21

Shakur v Cough/ill, 182 AD2d 928, 582 NYS22dJ56il(d§.9i)Jurich, 608 F Supp 931 (NO ILL 1985)

................................................................................ S3
Shalpe v Cough/ill, 177 AD2d 774,576 NYS2d 6!1~1y v Dugger, 833 F2d 1420, (11 th Cir 1987)

·

17

Sheppard v leFevre, 116 AD2d 867,498 NYS2d 190~IS86Jtz v Salrall, 368 NW2d 531 (NO 1985)

................................................................................ 42
Smith v Coughlin, 583 NYS 2D 622 (App Div I 992Jimith v Masc/mer, 899 F2d 949 (lOth Cir 1990)
113
·
Smith v Massachusetts Dept ofCorrections, 936 F2d 13901~Alidrl9mqle, 298 So2d 482 (Ga 1983)
· . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

How to WIN Prison Disciplinary Hearings

146

Sostl"e v McGi""i.f, 442 Fo2d 17R (2nd ORSiRa lr) Lord. 693 F.Supp 8. 693 F Supp 8 (S.D.N.Y. 1988
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Spellce v Fal77el", 807 F2d 753 ( 8th Cir 1986) .. SSprouse v Babcock. 870 F.2d 450 (8th Cir. 1989
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Sprouse v. Babcock. 870 Fo2d 450 (8th Cir. 1989) 40Spruytte v Wolters. 753 F2d 498 (6th Cir 1985)
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00.0

••••••••••••••••••••••••

46

State ex rei Hoover v GagnonS~JlbW~JLitiot'J6&o N1i{jbAI6S96 Vf9B!ij 115. 289 NW2d 357 (1980)
29
•••••••••••••••

0

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0

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0

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Stale ex rei Meeks v Gaglloll.~ i'dwlJ/iB& MWa.9'iiii~ \l59lOs 2d lIS, 289 NW2d 357 (1980)
26
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0

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StateexrelStaples v DepartmemofHealth & Social Services, 130 Wis 2d 308. 387 NW2d 551 (1986)
54State v Evans. 219 Kan 515. 548 P2d 772, 777
••••••••••

0

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00000000000.

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105

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State v Eva"s. 219 Kan 515. 548 P2d 772.17.7JL5. 7, SState v Gront. 26 N.C'App 554. 217 S.E.2d 3,5
•••••••••••••••

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o, . . . . . . . . . .. 10.12.21.36.46,47,52

••••••••••••••

State v Grollt, 26 N.C App 554. 217 SoEo2d 3.5 42State vJolmsOl'. 527 A2d 250 (ConnApp 1987)
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32

State v Luke. 382 So 2d 1265 (Flo Dist Ct AppO(l)lBQ)vart v Jozwiak. 399 F Supp 574 (ED Wis 1975)
106
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0

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0

••

Stokes v Fair, 795 F2d 235 (I lOt Cir 1986)
•••••••••••••••

0

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0

33S10I,e v Powell, 428 US 465 (1976)

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••••••••••••••••••••••••••

60

Stom,s v Coughli", 600 F Supp 1214 (SDlitIStl99~v Coughlin. 600 F Supp 1214 (S.D.N.Y. 1984)
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105

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Strick/and v Beyer. 1990 US Dist LEXIB S6-Uk(d»l.v ~r. 1990 US Dist LEXIS 2510 (DNJ 1990)
•••••••••••••••

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55

Strick/alldv Delo. 758 F Supp 1319 (ED Mo 1991) .. 46Superinte"dent v Hill. 472 US 445 (1985)
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101

Superimelldent v /fill. 472 US 445 (19&6'$uperillle"delll v. Hill. 472 US 445. 105 S.Ct. 2768 (1985)
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36

Superime"delll. Afassacl",.fell.f Correctio"aIItJJ6IliMIlrywnilllplildsU!M45~1l~~3 (ED Ark 1965)
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52

Taylor v Clement. 433 F Supp 585. 687-88 (S.D.N.Y4~Ri~"as v State. 339 NW2d 166 (Iowa 1983)
12

••••••••••••••••••••••••

0

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Thompsoll v Hal/. 883 F2d 70 (4th Cir l<Jml)Ti"g v UllitedStates. 927 F2d 1504 (9th CirCal1991)
••••••••••••••••

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26

Ti"g v Ullited Stata~~~~~fbhRrilldDaNl9illP. 123 Mich App 395, 333 NW2d 295 (1983)
•••••••••••••••••

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105

147

LIST OF CASES

APPENDIX-B

Torrd8lJlOOHp)jnylll.1l:0diUlgI,lilBDf~JlI'l'lmll~'Xl9lID~984),

aff'd in port rcv'd in part, 801 F2d
1080 (9th Cir 1986), cert denied, 481 U.S. 1069, 107 S.Ct 2462, 95 LEd 2d 871 (1987), subsequent
order following remand, 711 F Supp 536, aff'd in part, rev'd in part, 926 F2d 800 (9th Cir 1990), cert
denied, 112 S. Ct 213, 116 L Ed 2d 171 (1991)
16, 19
0

•••••••••••••••••••••••••

Toussaillt v McCarthy, 801 F2d 1080 (9th Cir 1986), eert dellied, 481 US 1069, subsequellt order
fo/Iowillg remalld, 711 F Supp 536 NO Cal, aff'd ill part, ,~v 'd ill part, & vacated ill part, 926 F2d 800
9th Cir, eert dellied, 112 S Ct 213 (I 99 I)lTowlles v Hewitt, 84 Pa Commw 151,478 A2d 548 (1984)
••••••••••••••••••••••••

0

•••••••••••••••••••••••••••••••••••••••••••••••••••••••

34

Tracy v Salamack, 572 F2d 393, 395 09 (2d (]j03lJi1~r v Dickey, 613 F Supp 1124 (WO Wis 1985)
106

•••••••••••••••••••••••••••••••••••••••••••••••••••••

0

••••••••

0

0

•••••••••••••••

Turner v Safeley, 482 US 78, 107 S.Ct. 2254,96 L Ed 2IJiI'~I~98S)ack, 811 F2d 424 (8th Cir 1987)
13
•

•••••••

0

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00'

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0

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0

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0

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00

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0

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0

••

0

•••••••

U.s. vs Lilly, 576 F2d 124U>{idi air J2i~, 653 F2d 403 (9th Cir), cel'l dellied, 454 US 904 (1981)
•••••••••••••••••••••••••••••••••••••••••••••••••••••

U.S.

0

~71W.s:aI.tm:i M11.m1d'l6d~djl~473BB~c'1ii'lG)C{JYtla9:7iJ)1973),

••••••

0

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0

••••••••

36

cel'l dellied, 414 US 1146 (1974)

•••••••••••••••••••••••••••••••••••••••••••••••••••••••••

0

•••••••••••••••

49

U.S. v Austill, _ U.S._. 113 S.oaao v,Ail6'iJ~OJAB!.{.1PPlJ).Ct 280 I, 125 L.Ed2d 488 (1993)
•••••••••••••••

0

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0

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0

0

••••••••••••••••••••••••••••••••••

0

•••••••••••••••••

U.S. v Boomer. 571 F2d 543, 546 (10th Cir 1978)
••••••••••••••••••••••••

0

•••••••••••••••••••

102

42U.S. v Cacereys 440 U.S. 741 (1979)
102
0

••••••••••••••••

U.S. v Cala"dra, 414 US 338 (1974) . . . . . . . . . . . .. 34U.S. v Court"ey, 979 F2d 45 (5th Cir 1993)
••

0

••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••

00

••••••

0

55

U.S. v Duke, 527 F2d 386 (500ur.): 4UialpDir:t4,9ma.5~ (09'&)::t. 1892, 104 L.Ed2d 487(1989)
••••

0

0

0.0

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0

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0

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0

0

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00

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0

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u.s. v Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed2d 48iJ(UlS9y Newby,
•••••••

0

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0

••••••

0

••••••••••

0

0

••••••••

0

55

11 F.3d 1143 (3rd Cir)
39

•••••••••••••••••••••••••••

U.S. v Risillg, 867 F2d ~16'5)(dOtlS!Brl;msJF (8th Cir 1975), eert dellied, 425 US 953 (1976)
•••••••••••••••••

0

••••••••••••••••••••••••••••••••

U.S. vs Ready, 574 F2d 1009 (10th Cir 1978) ....
•••••••••••••••

0

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0

0

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0

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44

101 U.S. vs Stumes, 549 Fd 831(8th Cir 1977)
44

•••••••••••••••••••••••••••••••••••••••

0

••••••

00

•••••••

Ullited States"ex ,~/Millerv Twomey, 479 F2d 701 (7th Cir 1973), eert de"ied, 414 US 1146 (1974)
· ... 101U"ited States v Cook, 783 F2d 1207 (5th Cir), aJJd on reconsideration, 793 F2d 734 (5th Cir
1986)
101
•

••••••••••••••••••••••••••••••••••••••••••••••••••••

o

•••••••••••••••••••••••••

U"ited States v Du"ke/, 927 F2d 955, 956 (7th CiJWmWniffilll~diM26i47d6~ifSD) (1984)
••••••

00

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0

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00

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0

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0

••••••••••••••

54

Van Poyck v Dugger, 582 S02d 108 (Fla 1st DCA 1991)~ 779 F Supp 571 (MD Fla 1991), atrd, 977
F2d 59m~dlllrejl:ll.!l90).1gger, 779 F. Supp 571 (M.D. Fla 1991), atrd, 977 F2d 598 (11th Cir 1992)
IS
••••••••••••••••••••••••••••••••

0

•••••••••••••••••••••••••••••••••••••••••••••••

Val7lS0ll v Satra", 368 NW2d 533 (HD"d19jJ.i)z v Cough/ill, 118 AD2d 897, 499 NYS2d 461 (1986)
................................................................................ 34

148

How to WIN Prison Disciplinary Hearings

Vasquez v COIl1?hlin, 726 F SlIpp466 CRO.N. YJ J~ v Franzen. 549 F Supp 426 (NO ILL 1982
. . . . . . . . . . . . . . . . . . . . .. .. .
114

Vines v Howard, 676 F Supp ~ Pdd6l8i7)l45 US 480, 100 s.n 1254,63 L.Ed.2d 552 (1980)
................................................................................ 25
Vogelsang v Coombe, 105 AD2d 913, 482 NYS2d 348 (1984), affd, 66 NY2d 835. 489 NE2d 251. 498
F2d 1012 (7th Cir 1986), appeal after remand, 902 F2d 578 (7th Cir
1990)
................................................................................ 54
NY~~~Williford, 804

Walker v Bales, 23 F.3d 652 (2nd Cir. 1994) . . . . .. 28Walker v Bales. 23 F.3d 652 (2nd Cir. 1994)
................................................................................ 16

Walker v Hughs, 558 F2d 1247, 1255 (6th Cir 19G739Walker v Sunmer, 917 F2d 382 (9th Cir 1990)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. I, 11
Wa//vScu/Iy, 121 Mise 2d 698, 468 NYS2d 984 (19~h v. Film, 865 F. Supp. 126 (SO NY 1994)
................................................................................ 61

Ward v Jolmson, cDt)7.lmd tlU61*,df'~ville, 409 U.S. 57.93 S. Ct 80, 34 LEd 2d 267 (1972)
............................................................................... 105
Warren v Irvin, 584IGYWbili6#t(:Bpp Bir}ti9l'4 US 210. 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990)
................................................................................ 27
Washinglon v Siale 405 So 2d 62 (Ala erim App 1981) .. 102Weaver v Graham. 450 US 24 (1981)
................................................................................ 28
Weaverv. BrMJletllWbRsld ImklS52~lOlIlippWJYIED Wis 1986), affd, 854 F2d 995 (7th Cir 1988)
................................................................................ 41
Werlinger v State, 117 Idaho 47, 785 P2d 172 (19~ite v Booker, 598 F Supp 984 (ED Va 1984)
................................................................................ 28

Whitehorn v Harrelson, 758 F2d 1416 (11 th Cir ~tford v. Boglino. 63 F.3d 527 (7th Cir. 1995)
............................................................................... 102
Wighlman vSuperintendellt, Ma.f.mchu.fetts Con'ectionallnslillIIion. 19 Mass App 442. 475 NE 2d 85
(191U1fighlman v Superinlendent, Massachuselts Con·ecliollallnsl., 19 Mass App Ct 442. 475 NE2d
85 (1985)
28
Wildberger v Brad71ell, 869 F2JIiJ~""~1 ah(JlJiltgh9f&ple Con', 24 Or App 61, 544 P2d 198 (1976)
............61
Williams v Scllllile. 605 F Supp 498 (ED Mo 1984) 61 Williams v State, 421 NW2d 890 (Iowa 1990)
................................................................................ 45
Wi/Iiams v. Smilh. 717 F. Supp. 523 (WO MI1989). 96Wilson v Higgs, 940 F2d 664 (6th Cir 1991
................................................................................ 95
Willers v Uniled Siales, 70 U.S.~lih£vlY6tt186'iiUb'~1g,18f8) App. D.C. 316, 106 F2d 837, 840

................................................................................ IS
Wolfe v Carlson, 582 F Supp 977 (SDNY 1984) ... 14Wolfel v Bales, 707 F2d 935 (6th Cir 1983)
................................................................................ 40

APPENDIX-B

LIST OF CASES

149

36Wo(ffvMcD01ll,ell, 418 US 539 (1974)
Wolfel v Monis, 972 F.2d 712 (6th Cir. 1992)
................................................................................ 27
Wo(ffv McDolll,el/, 418 US 539 (1974)
18, 28Wolffv. MeDoIUlell, 418 US 539 (1974)
................................................................................ 21
Wong v Coughlin, 138 AD2d JIJ!qdi1ltYM»~cf.2B8faluralizalioll
Service, 385 US 276 (1966)
................................................................................ 18

Woodby v Immigralion Selvice, 385 US 276 (1966) 25 Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995)
................................................................................ 53

Works v Siale, 575 So 2d 622 (Ala Crim App ~ght v Caspari, 779 F Supp 1025 (ED Mo 1992)
................................................................................ 16

Wykoffv Resig, 613 F.Supp 1504, at 1513 (D.O:2Jddjllil8f8v Kam" 926 F Supp 1396 (3rd Cir 1991)
................................................................................ 50
Young v Kam" 926 F2d 1396 (3rd Cir 1991) ..... 31 Young v Kaml, 926 F2d 1396 (3rd Cir 1991)
................................................................................ 14

Yo,mg vSelsky, 41 F.3d 47 (2nd Cir. 1994) .... 21Zavaro vCoughlill, 970 F2d 1148 (2d Cir 1992)
................................................................................ 19
Zellner v New Jersey Depl. ofCon', 201 NJ Super 195,492 A2d 1084 (App Div), cel1 dellied, 102 NJ
299,508 A2d 186 (1985)
3Zilich v. Longo, 34 F.3d 359, 364 (6th Cir. 1994)
................................................................................ 46

Hines v. Gomez, 853 F. Supp. 329 (NO CAL 1994)
Holms v Coughlill, 583 NYS2d 703 (App Div 1992) . . . . . . . . . . . . . . .. .. . . . . . . . . .. .. . .
Homer v Monis, 684 P2d 64 (Utah 1984)

5
115

HouslilJ v. Lack, 487 US 266.108 S Ct. 2379 (1988)

26
51

Howard v Grinage, 6 F 3d 410 (6th Cir 1993)
Howard v Kelly, 117 AD2d 1002,499NYS2d547 (1986)

55
14

Howard v Wi/kersoll, 768 F Supp 1002 (SDNY 1991)
Hudson v Hedge. 27 F3d 274 (7th Cir 1994)

9
42

Hughes v Rowe, 101 US 173,177(1980)
Hunyaui v Smith, 112 Mise 2d 484,447 NYS 2d 226 (S. Ct. 1982)

Hullo vs Fim'Y. 437 U.S. 678, 98 S. Ct. 2565 (1978)
Hyltoll v Lord, 148 AD2d 453. 538 NYS2d 951 (1989)
In re Gaull, 387 US 1 (1967)

11, re Lamb, 34 Ohio App 2d 85, 296 NE2d 280 (1973)
In re Plunketl, 57 Wash App 230, 780 P2d 1090 (1990)

11, Re Jol",Sloll, 745 P2d 864 (Wash., 1987)
ill re Lamb, 34 Ohio App 2d 85, 296 NE2d 280 (1973

41
105
27
54
20
109
36
102
42

In reRamirez, 39 Ca13d 931, 705 P2d 897, 218 Cal Reptr 324 (1985). cert denied, 476 US 1152 (1986
)40

Illgraham v. Wright, 430 U. S. 651 (1977)

106

ISO

How to WIN Prison Disciplinary Hearings

Irby V Young, 139 Wis2d 279, 407 NW2d 314 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

in re Lamb, 34 Ohio App 2d 85. 296 NE2d 280 (1973)
Jackson v Kuhlmann, 109 Misc2d437,440 NYS2d 154 (S.Ct. 1981)

40
45,47

Jacob v Winch, 121 AD2d 446. 503 NYS2d 417 (ll,9ll.6}-7, 18.20.21.25.27.48.65,67,73.99-101
18
Jennings v Coughlin. 99 AD2d 635,472 NYS2d 195 (1984)
Jensen v Satran. 332 NW2d 222 (ND 1983)
Johnakin v Racette. III AD2d 579. 489 NYS2d 643 (1985)
Johnson v Vitek, 205 Neb 745. 290 NW2d 190 (1980)
Jolmson-ElvSehoemehl. 878 F.2d 1043 (8th Cie. 1989)
Jones v Marquez. 526 F Supp 871 (D Kan 1981)
Jones v Smith, 116 AD2d 993, 496 NYS2d 712 (1986)
Joseph vHustadCOIp.• 454 P2d 916. 918
Kastigar v United States, 406 US 441 (1972)

45
101

,

110
35
24
34.37
62
32

Keenan v Van Oehtell. 136 Mich App 364. 356 NW2d 640 (1984)
100
Keeves v Pettcox. 19 F 3d 1060 (5th Cir 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 107
Kel9-' v Brewer. 525 F2d 394 (8th Cir 1975)
46
Kelly v Brewer. 525 F2d 394 (8th Cir 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Kel9-' v Nix. 29 NW2d 287 (Iowa 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 109
Kentuck-y DOC v Thompson. 490 US 454. 109 S.Ct. 1904, 104 L.Ed.2d 506 1989
2. 16
Kimball v Scotts, 1993 WI. 455266 (D Kan 1993)
Kincaidev Coughlin. 86 AD2d 893, 447 NYS2d 521 (1982)

35
41

King v Hillon, 525 F Supp 1197 (DNJ 1981)
King v Wells. 760 F2d 89 (6th Cir 1985)

SS
S4

King v Wells, 760 F2d 89 (6th Cir 1985)
Kingsley v Bureau (?f Prisons. 937 F 2d 26 (2nd Cir 1991)

48
33

Kingsley v Bureau o/Prisons. 937 F2d 26 (2d Cir 1991)
Koenig v Val/nelli, 971 F2d 422 (9th Cir 1992)

41
35, 35.37

Kvitka v Board (ifRegistt'Qtiol/ in Medicine, 407 Mass 140 (1990) . . . . . . . . . . . . . . . . . . . . . . . .. 27
Kyle v Hanberry, 677 F2d 1386 (II th Cir 1982)
49

LaBall v Twomey. 513 F2d 641 (7th Cir 1975)

Kyle v Hanberry, 677 F2d 1386 (II th Cir 1982)

26
14

Lamoureux v Superintendent, 390 Mass 409,456 NE2d 1117 (1983)
Landman v Royster. 333 F Supp 621 (ED Va 1971)

27
36

Landman v Royster. 333 F Supp 621 (ED Va 1971)
46,47
Landman v Royster. 333 F Supp 621 (ED Va 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Landman v Royster. 333 F Supp 621 (ED Va 1971)
28
Langley v Scurr. 305 NW2d 418 (Iowa 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
Lathrop v Brewer. 340 F Supp 873 (SD Iowa 1972)

42

151

LIST OF CASES

APPENDIX-B
Laville v Wright, 423 F Supp 357 (D Utah 1976)

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Law v Racette, 120 AD2d 846. 50 I NYS2d 959 (1986)
Layton v Beyer. 953 F2d 839 (3rd Cir 1992)
0

0

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0

Lewis v Israel, 528 F Supp 960 (ED Wis 1981)
Lewis v La"e,882 F2d 1171 (71.h Cir 1989)
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Lowrance v Coughlin, 98 AD2d 733, 469 NYS2d 148 (1983) .
Lowra"ce v. Aclrtyl, 20 Fo3d 529, 537 (2nd Cir. 1994)
0000

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Maldonado Santiago v Velazquez Garcia. 82 r F2d 822 (1 st Cir 1987)
Malek v Camp, 822 F2d 812 (8th Cir 1987)
0

0

0

0

0

0

Mapp vs Ohio, 367 US 643 (1961)
Martino v Carey, 563 F Supp 984 (D Or 1983)

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Mat"is v u.s., 391 U.S. 1,88 S.Ct. 1503 (1968)
Mays v Mahoney, 23 F.3d 660 (2nd Cir. 1994)

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25
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52

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0

0

McCans v Annour and Co., 254 F20 903 ...
McCorkle v. Walker. 871 F. Supp. 555 (NO NY 1995)
••

0

•

0

0

•

0

McCalln v Coughlin, 698 F2d 112 (2d Cir 1983) ..
McCalll' v. Coughlill, 698 Fo2d 112, 121 (2d Ciro1983)
0

0

0

0

0

Mathews v Eldridge, 424 U.S. 319, 96 S.Ct. 893,47 LEd 2d 18 (1976)
Mathews v Eldridge, 424 US 319 (1976)
0

0

••

Massop v Lefevre, 127 Mise 2d 910, 487 NYS2d 925 (SCt 1985)
Matlres v Ullited States, 391 U.S. 1,88 S Ct. 150,20 L Ed2d 381 (1968) .

0

•••

0

Massachusells Con-ectional /"st v Hill, 472 US 445 (1985) o'
Massop v Lefevre, 127 Mise 2d 910, 487 NYS2d 925 (S.Ct 1985) .
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53
43
113
119

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Malik v Ta"ner, 697 F Supp 1294 (SONY 1988
Mallard v Dalsheim, 97 AD2d 545, 467 NYS2d 903 (1983)

0

20
16

0

Locks v Three U"idemijied Custollls Service Agellts, 759 F Supp 1131 (ED Pa 1990)
Logall v. ZimmennallBrosh Compally, 455 US 422, 102 SoCl 1148 (1982)
Loggins v Delo, 999 Fo2d 364 (8th Cir. 1993) ..
Lopez v Smith, 105 AD2d 1124,482 NYS2d 583 (1984)

40

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108

McDollnell v Wolff, 483 F2d 1059 (8th Cir 1973), aff'd ill part & rev'd;1I part, 418 US 539 (1981)
o'
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53
McGill v Couglr/i", 583 NYS2d 702 (App Div 1992) ..
36
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McGi""is v Stephens, 543 P2d 1221, 1231 n28(A1aska 1975)
McGinnis v Stevens, 543 P2d 1221 (Alaska 1975)
Mc/mosh v Carter, 578 F Supp 96 (WO Ky 1983)
McKim,ey v Meese, 831 F2d 728 (71.h Cir 1987)

0

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McKinnon v. Patterson, 568 F.2d 930, 939 (2nd Cir. 1977)
McLellen v Superintendent. 29 Mass App 122, 558 NE2d 5 (1990)

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••••

152

How to WIN Prison Disciplinary Hearings

Meachwn \' Fano. 427 U.S. 215. (1976)
Meachwn \' Fano. 520 F2d 374 (l:;t Cir 1975)

15, 16
15

Meachwn v. Fano. 427 US 215 (1976)
Meadows v Marqllette Pri.fon Warden. 117 Mich App 794, 324 NW2d 507 (1982)

2
53

Meis v Gunter, 906 F.2d 364 (8th Cir. 1990)
Mendoza v Miller. 779 F2d 1287 (7th Cir 1985), cel'l denied, 476 US 1142 (1986)

11
32

Mendoza v Miller. 779 F2d 1287 (7th Cir 1985), cel1 denied. 476 US 1142 (1986)
Mendoza v Miller, 779 F2d 1287 (7th Cir 1985), ccrt denied. 476 US 1142 (1986)

26
27

Mendoza v Miller. 779 F2d 1287 (7th Cir 1985), cert denied. 476 US 1142 (1986)
Mendoza v Miller. 779 F2d 1287 (7th Cir 1985), cel'l denied, 476 US 1142 (1986)

100
100

Mendoza vA/iller, 779 F2d 1287, 1295 (7th Cir 1985) certden, 476 US 1142 (1986)
:: Mendoza v. Miller, 779 F.2d 1287 (7th Cir. 1985)

48
9

Merioalher v COllghlin. 879 F2d 1037 (2nd Cir 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 106
Merritt v De Los Santos. 721 F2d 598 (7th Cir 1983)
21
Mins v Sharp, 744 F2d 946 (3rd Cir 1984)
Miranda v Arizona, 384 US 436 (1966)

15
29

Mitchell v Dupnik. 95 C.D.a.S. 7572(Calif. App Cl. 1995)
Mitchell v Hicks. 614 F2d 1016 (5th Cir 1980)

4
16

Monell v Deparlmen' ofSocial Selvice.t. 436 US 658 (1978)
Moody v McNamara. 606 F.2d 621 (5th Cir. 1979)

115
76

Moody v McNamara. 606 F.2d 621 (5th Cir. 1979)
Morales v California DOC. 16 F3d 1001 (9th Cir 1994)

106
3

Morales v. California Department of Correction. 57 CrL 2021. April 26. 1995. 1995 WL 236551 (US)
3
Morgan v District ofColumhia. 647 S Supp 694 (DOC 1986)
18

Morgan v Lavalle. 526 F.2d 221 (2nd Cir. 1975)
Morrisey v Brewer. 93 S.Ct 2593
MolTison v Lefevre. 592 F Supp 1052 (SDNY 1984)
Morrison v Lefevre. 592 F Supp 1052 (SONY 1984)
Morrissey v Brewer. 408 US 471. 489 (1972)
Mukmuk v Commissioner of DOC, 529 F.2d 272 (2nd Cir.1976)

105
22
42
55
48
105

Murray v State. 116 Idaho 744. 779 P2d 419 (Ct App 1989)
Myers v Askew. 338 So 2d 1128 (Fla Dist Ct App 1976)

18
21

Nash v Thielke. 743 F Supp 1301 (ED Wis 1990)
Newman v COllghlin. 110 AD2d 981. 488 NYS2d 273 (1985)

37
37

Nigro v. Sullivan, 40 F.3d 990 (9th Cir. 1994)
Nigro v. SuI/ivan. 40 F.3d 990 (9th Cir. 1994) . . . . . . . . . • • • • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • ••

51
51

Nix v Evatt, 850 F. Supp. 455 (0 SC 1994)
Olim v Wakina, 461 US 238 (1983): 103 S Ct1741. 75 L 2d 813 (1983)

19
17

APPENDIX-B

LIST OF CASES

Olim v Wakinekona, 461 US 238,103 S.Ct. 1741, 7S L.Ed.2d 813 (1983)
Ort v While, 813 F2d 318 (11th Cir 1987)
Pace v Oliver, 634 F2d 302 (5th Cir

1981)~

Palmigiallo vs Travisallo, 317 F Supp 776 (DR! 1970)

153
2, 14
14
25
60

Palmigiano v Baxter, 487 F2d 1280 (lSl Cir 1973), rev'd, 425 US 308 (1976)
Parenti v Ponle, 727 F2d 21 (I st Cir 1984)

20, 23
16

Parker v Cook, 642 F2d 865 (5th Cir 1981)

14, 15
40

Parker v State, 597 So 2d 753 (Ala Crim App 1992)
Parralv Taylor, 451 U.S. 527, 101 S.Ct. 1908(1981)
Palerson v Coughlin, 905 F2d 564 (2d Cir 1990)

116
21

Pallersoll v Riddle, 407 F Supp 1035 (ED Va 1976), affdwithout Opillioll, 556 F2d 574 (4th Cir 1977)
55

Paylle v. Axelrod, 871 F. Supp. 1551 (ND NY 1995) . . . . .. . . . .. . . .. .. . . .. .. . . . .. .. . .. .. 108
Pearson v Townselld, 362 F Supp 207 (DSC 1973)
Pella v Adams, 638 F Supp 94 (D Nev 1986)

51
37

Pella v Adams, 702 F Supp 244 (D Nev 1988), see also, 723 F Supp 1394 . . . . . . . . . . . . . . . . . .. 37
People ex rei Bridges v Smith, 105 AD2d 1142, 482 NYS2d 619 (1984) . . . . . . . . . . . . . . . . . . . . 46
People ex rei Corcorall v Smitll, 105 AD2d 1142,482 NYS2d 618 (1984)
People ex rei Corcorall vSmitll, 105 AD2d 1142,482 NYS2d618 (1984)
People ex rei Vega Smith, 66 NY2d 130, 485 NE2d 997, 495 NYS2d 332 (1985)
People ex reI Vega Smith, 66 NY2d 130,485 NE2d 997, 495 NYS2d 332 (1985)
People ex reI Yoder v Hardy, 116 ll.L App 3d 489, 451 NE2d 965 (1983)

101
46
99
24

People v Can', 149 Mich App 653, 386 NW2d 631 (1986)

18,52
29

Perallzo V Cough/ill, 608 F Supp 1504 (SONY 1985)
Perallzo vCoughlill, 850 F2d 125 (2nd Cir 1988)

36,38
34

Phelps v U.S. Federal Govemmelll, 15 F3d 73S (8th Cir 1994)
Picard v State, 339 NW2d 368 (Iowa 1983)

29
52

Pillo vs Dalsheill/, 605 F Supp 1305 (SONY 1984)
Pillo v Dalsheill/, 605 F Supp 1305 (SO NY 1984)

74
49

Pilts v Kee, 511 F Supp 497 (D. Oe11981)
Ponle v Real, 471 U.S. 491,495, 105 S.Ct. 2192, 8S LEd 2d 553 (1985)
Powell v Ward, 392 F Supp 628 (SONY 1975), modified, 542 F2d 101 (2d Cir 1976)
Powell v Ward, 487 F Supp 931 (1975), affd 542 F2d 701 (2nd Cir 1976)

Prall v Rowlalld, 770 F Supp 1399 (NO Cal 1991)
Prall v Rowland, 856 F Supp 565 (ND. Calif 1994)

18
24,99
5,21,22
18,55
41
17

Preiser v Rodriguez, 411 US 475
, 115
Prock v District Court, 630 P2d 772 (Olda 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 52
Proeunicr v Martinez, 416 U.S. 396,94 S Ct 1800,40 LEd 2d 224 (1974)
Quick v Jones, 754 F2d 1521 (9th Cir 1985)

11
10

How to WIN Prison DisciplinWV Hearings

154

Quilllall v Fail1l1all. 663 F Supp 24 (NO ILL 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Ramirez v In re, 566 39 3d 931. 70S P2d ~97. 218 Cal Rcptr 324 (1985), ccrt denied 476 U.S. 1152;
106 S.Ct 2266,90 L Ed 2d 711 (1986)
10
0

Ramirez v Turner, 991 F.2d 351 (7th Cir. 1993)
Ransom v Davies, 816 F Supp 681 (0 Kan 1993)

0

0

••••••••••

0

0

0

Reed v Parratt, 207 Neb 796 , 301 NW2d 343 (1981)
Reeves v Pettco:r, 19 F 3d. 1060 (5th Cir 1994)

Reeves v Petlcox, I 9 F.3d 1060 (5th Cir. 1994)
ReevesvPellcox.19FJd.1060(SthCirI994)

0

0

0

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53
51

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Reinhard v Lawrellce Warehou.~e Co., 41 Cal App2d 741,107 P2d SOl, 504
Reillhardv Lawrellce WarehOlI.fe Co., 41 Cal App2d 741, 107 P2d SOl, 504
. Richardson v Deparlmellt ofIlIlerior, 740 F Supp 15 (D DC 1990)
Riley v. Kurtz, 893 F. Supp. 709 (ED MI 1995) .......

4·

0

Rios v Lane, 812 F.2d 1032 (7th Cir. 1987)
Rivera v Toft, 477 F2d 534 (10th Cir 1973) ..

..

..

•

•

..

•

•

..

•

•

•

Rogers v Oestreich, 736 F Supp 964 (ED Wis 1990)
Rowe v. DeBruyn, 17 Fo3d 1047 (7th Cir. 1994)
Ruckert v Jo/msoll, 724 F Supp 568 (ND ILL 1989)
Rudd v Sarge"', 866 F2d 260 (8th Cir 1989) ..
0

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28

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17

44, 46
8

0

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17
51
42
102

0

Rodgers v Thomas, 879 F2d 380 (8th Cir 1989)
Roesch v Wainwright. 474 So2d 1263 (Fla Dist Ct App 1985)

21
35

0

0

0

0

•

•

•

•

44
40

Rudd v Sargelit, 866 F2d 260, 262 (8th Cir 1989) .
46
Ruizv&telle, 679 F2d 1115, 1155-56 (5th Cir), modified, 688 F2d 266 (5th Cir 1982), cel'l dellied, 460
US 1042 (1983)
50
0

0

0

0

0

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0

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0

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Rusher v Amold, 550 F2d 896 (3rd Cir 1977) .....
29
Russell v Divisioll ofCon·ecliom. 392 F Supp 476 (WO Va), aff'd without Opillioll, 530 F2d 969 (4th
55
Cir 1975)
0

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0

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Russell v Scully, 782 F Supp 876 (SoD.No Yo 1993), rev 'd 15 F3d 219 (2nd Cir 1993) .....
Saenz v YOlmg, 811 F2d 1172 (7th Cir 1987) ........
0

....

Sanchez v Smith, 115 AD2d 285. 496 NYS2d 152 (1985) ...
Sandin v Conner, 63 L.W. 460L 115 SoCt. 2293 (1995)
0

0

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26
54

105
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0

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0

Sands v Wainwright, 357 F Supp 1062 (MD Fla), vacated 491 F2d 417 (5th Cir 1973).. 10, 12,21,
36,46,47,52
Sands v Waillwright 357 F SUPP 1062 (MD Fla), vacaled, 491 F 2d 417 (5th Cir 1973), cerl dellied,
416 US 992 (1974) ..... '" ... o'
42
0

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Scatpa v POllle, 638 F SUPP 1019 (D Mass 1986)

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ScherevEllgelke, 948 F2d 921 (6th Cir 1991)
Sclrmerber v Califomia, 384 US 757,760-61 (1960) ....
Sc/meck/olh vs Bllstamollte, 412 US 18(1973) .

•••••

0.

0

32
100

o. 106
33

0

0

0

0

60

APPENDIX-B

LIST OF CASES

Scott v Kelly, 962 F2d 145 (2d Cir 1992)

Sczderbaryv Oswa/d, 341 F. Supp. 571 (SONY 1972)
Sellers v Roper. 554 F Supp 202 (ED Va 1982)
Sellers v Roper. 554 F Supp 202 (ED Va 1982)
Shakur v Cough/ill, 182 AD2d 928. 582 NYS22d 302 (1992)

ISS
24
105
51
55
46

Shakur v Cough/ill, 182 AD2d 928, 582 NYS22d 302 (1992)
, 10 I
Shango v Jurich. 608 F Supp 931 (NO ILL 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Sharpe v Cough/ill, 177 AD2d 774, 576 NYS2d 62 (1991
36
Shelly v Dugger. 833 F2d 1420, (11 th Cir 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .. IS
SheppardvLeFevre, 116 AD2d 867, 498 NYS2d 190 (1986)
Shultz v Salran, 368 NW2d 531 (NO 1985)

52
40

Smith v Coughlin, 583 NYS 20 622 (App Div 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
Smith vMase/mer. 899 F2d 949 (10th Cir 1990)
105
Smith v Massachusetts Depl of Corrections, 936 F2d 1390 (I sl Cir 1991)
Smilh v Slale, 298 So2d 482 (Ga 1983)

26
34

Soslre v McGilmis. 442 F.2d 178 (2nd Cir. 1971)
SolO v. Lord, 693 F.Supp 8,693 F Supp 8 (S.D.N.Y. 1988

, 105
38

SOlo v. Walker.44 F.3d 169 (2nd Cir. 1995)
Spellmon-Beyv Lynaugh, 778 F Supp 338 (ED rex 1991)

16, 19
18

Spellce v Farrier, 807 F2d 753 ( 8th Cir 1986)
.sprouse v Babcock. 870 F.2d 450 (8th Cir. 1989

34
105

Sprouse v. Babcock. 870 F.2d 450 (8th Cir. 1989)
Spruylte v Walters, 753 F2d 498 (6th Cir 1985)

106
14

State ex rei Hoover v Gagnon, 124 Wis 2d 135, 368 NW2d 6576 (1985)
Slale ex rei Meeks v Gaglloll, 95 Wis 2d 115,289 NW2d 357 (1980)
State ex rei Meeks v Gagllon, 95 Wis 2d 115,289 NW2d 357 (1980
State ex rei Meeks v Gaglloll, 95 Wis 2d 115, 289 NW2d 357 (1980)

. . . . . . . . . . . . . . . .. 13
49
36
47

Stale ex rei Slapies v Depal1l11elll ofHeallh & Social Services, 130 Wis 2d 308.387 NW2d 55 I (1986)
49
Slale v Evalls;219 Kan 515. 548P2d772, 777
42
Slale v Evalls, 219 Kan 515, 548 P2d 772, 777
Slale v Gram. 26 N.C App 554, 217 S.E.2d 3,5
Slale v Gram, 26 N.C App 554, 217 S.E.2d 3,5
Slale v JOhIlSOIl, 527 A2d 250 (Conn App 1987)

, 102
42
102
34

Siale v Luke, 382 So2d 1265 (FlaDistCtApp 1980)
Stewart v Jozwiak, 399 F Supp 574 (ED Wis 1975)

55
20

Siokes v Fair, 795 F2d 235 (I st Cir 1986)
Slolle v Powell, 428 US 465 (1976)

55
41

156

How to WIN Prison Disciplinary Hearings

Stonlls v COUi!hlill. 600 F Supp 1214 (SONY 1984)
Stonlls v Cuugh'ill. 600 F Supp 1214 (S. D. N. Y. 1984)

39
34

Strick/and v Beyer. 1990 US Disl LEXIS 2510 (DNJ 1990)
Strick/and v Beyer. 1990 US Dist LEXIS 2510 (DNJ 1990)

44
10I

Strick/and v Delo. 758 F Supp 1319 (ED Mo 1991)
Superilllendelll v llill, 472 US 445 (1985)

44
10 I

Superimendelll v Hill. 472 US 445 (1985)
Superintendent v. llil/, 472 US 445, 105 S.Ct. 2768 (1985)
Superintendent, Massachusetts Con-ectiollallllstitution v Hill, 472 US 445 (1985)
Talley v Stephens. 247 F Supp 683 (ED Ark 1965)

10I
44,45
54
12

Taylor v Clement, 433 F Supp 585,687-88 (S.D.N.Y. 1977)
• Thomas v State, 339 NW2d 166 (Iowa 1983)

15
54

Thompson v Hall, 883 F2d 70 (4th Cir 1989)
Tillg v United States, 927 F2d 1504 (9th Cir Cal 1991)

34
113

~

Ting v United Slates, 927 F2d 1504 (9th Cir Cal 1991)
114
Tocco v Marquette Prison Warden, 123 Mich App 395, 333 NW2d 295 (1983) . . . . . . . . . . . . . .. 17
Torres v Coughlin, 161 AD2d 1080. 557 NYS2d 636 (1990)
25
Toussaint v McCarthy. 597 F Supp 1388 (N.D. Call984), atrd in part rev'd in part. 801 F2d 1080 (9th
Cir 1986), cert denied, 481 U.S. 1069. 107 S.Ct 2462,95 L Ed 2d 871 (1987), subsequent order
following remand, 711 F Supp 536, aird in part, rev'd in part, 926 F2d 800 (9th Cir 1990), cert denied,
112S.Ct213,1l6LEd2d 171 (1991)
14

Toussaillt v McCat1hy. 801 F2d 1080 (9th Cir 1986), cert dellied, 481 US 1069, subsequent order
following remand. 711 F Supp 536 NO Cal, affd in pat1. rev'd ill pal1, & vacated ill pan, 926 F2d 800
9th Cir, cerl tlenied, 112 S Ct 213 (1991)
54
Townes v Hewitt, 84 Pa Commw 15 I, 478 A2d 548 (1984) . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .. 28
Tracy v Salllmack. 572 F2d 393.39509 (2d Cir 1978)
Tucker v Dickey, 613 F Supp 1124 (WO Wis 1985)
Turner v Safeley, 482 US 78. 107 S.Ct. 2254,96 LEd 2d 64 (1987)
Tyler v Black, 811 F2d 424 (8th Cir 1987)

U.s. vs Li/{v, 576F2d 1240 (5th Cir 1978)
U.s. vs Vallez, 653 F2d 403 (91h Cir). cen denied, 454 US 904 (1981)

..

16
36, 39
I, II
IS
61
61

U.S. Ex Rei Lattins v Oswald. 510 F.2d 583 (2nd Cir. 1975)
U.S. ex nl Miller v Twomey, 479 F2d 701 (7th Cir 1973), cel1 dellied, 414 US 1146 (1974)

105
101

U.s. vAuslin, _ U.S._. 113 S.Ct 2801.125 L.Ed2d 488 (1993)
U.S. V Auslill, _ U.S._. 113 S.Ct 2801.125 L.Ed2d 488 (1993)

27
102

U.S. v Boomer, 571 F2d 543. 546 (10th Cir 1978)
U.S. v Cacereys 440 U.S. 741 (1979)

28
16,17

U.S. v Calandra. 414 US 338 (1974)
U.S. v COllrllley, 979 F2d 45 (5th Cir 1993)

41
3S

U.s. v Duke, 527 F2d 386 (5th Cir). cert denied, 426 US 952 (1976)

28

APPENDIX-B

LIST OF CASES

157

u.s. v Halper, 490 U.S. 435, 109 S.Ct. 1892. 104 L.Ed2d 487(1989)

27

U.s. v Halpe,., 490 U.S. 435, 109 S.Ct. 1892. 104 L.Ed2d 487(1989)
U.S. v Newby. 11 F.3d 1143 (3rd Cir)

, 102
28

U.S. v Rising, 867 F2d 1255, 1259 (lOth Cir 1989)
U.S. v Stead. 528 F2d 257 (8th Cir 1975), cerl denied, 425 US 953 (1976)

28
28

U.s. vs Ready, 574 F2d 1009 (lOth Cir 1978)
US. vs Stumes, 549 Fd 831(8th Cir 1977)

61
61

United States ex reI Miller v Twomey, 479 F2d 701 (7th Cir 1973), cert denied, 414 US 1146 (1974)
............................................................... ;
45
United States v Cook, 783 F2d 1207 (5th Cir), atrd on reconsideration, 793 F2d 734 (5th Cir 1986)
................................................................................ 96
United States v Dunkel, 927 F2d 955, 956 (7th Cir 1991), aff'd, 986 F2d 1425 (7th Cir 1993) .. 95
United States v Gouveia, 467 US 180 (1984)
19

Van Poyck v Dugger, 582 S02d 108 (Fla 1st DCA 1991); 779 F Supp 571 (MO Fla 1991), atr'd, 977
F2d 598 (II th Cir 1992) .. .. . . .. .. .. .. . . . .. . . . . .. . . . . .. . . . . .. . . .. . .. . . . . . .. . .. . . . .. 15
Van Poyck v Dugger, 779 F. Supp 571 (MD. Fla 1991), atr'd, 977 F2d 598 (11th Cir 1992) .... 14
Vamson v Satran, 368 NW2d 533 (NO 1985)
Vasquesz v Cough/in, 118AD2d897,499NYS2d461 (1986)
Vasquez v Coughlin, 726 F Supp 466 (S.D.N.Y. 1989)
Vaughn v Franzen, 549 F Supp 426 (NO ILL 1982

40
36
27
18,28

Vines v Howard, 676 F Supp 608 (ED Pa 1987)
Vitek v Jones, 445 US 480,100 S.Cl 1254.63 L.Ed.2d 552 (1980)

21
3

Vogelsang v Coombe, 105 AD2d 913, 482 NYS2d 348 (1984), af/d, 66 NY2d 835, 489 NE2d 251, 498
NYS2d 364 (1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
Wagner v Williford, 804 F2d 1012 (7th Cir 1986), appeal after remand, 902 F2d 578 (7th Cir 1990)
................................................................................ 25
Walke,. v Bates, 23 F.3d 652 (2nd Cir. 1994)
Walke,. v Bates. 23 F.3d 652 (2nd Cir. 1994)

53
, 106

Walker v Hughs, 558 F2d 1247, 1255 (6th Cir 1977 .. . . .. . .. .. .. .. . . . . . . . .. .. . .. .. .. . . .. 16
Walker v Swnner, 917 F2d 382 (9th Cir 1990) . . . . .. .. . . . .. . . . . .. . . .. . . . . .. . .. .. .. .. 12, 15
Wall v Scully,' I21 Mise 2d 698, 468 NYS2d 984 (1983)
50
Walsh v. Filii'. 865 F. Supp. 126 (SD NY 1994) .. .. .. . . . . . . .. . . .. .. . . . . . . .. . .. .. .. . .. .. 31

Ward v Johnson, 667 F2d 1126 (4th Cir 1981)
Ward v Village ofMonroeville, 409 U.S. 57,93 S. Ct 80,34 LEd 2d 267 (1972)

14
21

Warren v Irvin, 584 NYS2d 365 (app Div 1992)
Washington v Harper, 494 US 210,110 S.Ct. 1028, 108 L.Ed.2d 178 (1990)

19
3

Washington v State 405 So 2d 62 (Ala Crim App 1981)
Weaver v Graham, 450 US 24 (1981)

46
5

:

Weaverv. Brem,er, 40 F.3d 527, 532 (2d Cir. 1994)
Wells v Israel, 629 F Supp 498 (ED Wis 1986), atrd, 854 F2d 995 (7th Cir 1988)

115
26

How to WIN Prison Disciplinary Hearings

158

WerlingervState. 117 Idaho 47.785 P2d 172 (1990)
51
White v Bouker. 59X F Supp ')l(4 (ED Va 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S5
Whitehorn v Harrelson. 758 F2d 1416 (11 th Cir 1985)
Whitford v. Boglino. 63 F.3d 527 (7th Cir. 1995)

. . . . . . . . . . . . . . . . . . .. . . . . . . . .

14
9

Wightman v Superinte"de11l, Massaehusetu Con-eetionallnstitmion. 19 Mass App 442. 475 NE 2d 85
(1985)
42
Wightman v Superimenelellt. Alassaehll.'.ells Con-eetional but.• 19 Mass App Ct 442. 475 NE2d 85
(1985)
41
Wi/dberger v Brae/mell. 869 F.2d 1467 (II th Cir. 1989) .. . . . . .. . . . . . . . . . .. . .. . .. . . ..
Wilkerson v Oregoll State Con'. 24 Or App 61. 544 P2d 198 (1976)
Williams v ScIIlIlte. 60S F Supp 498 (ED Mo 1984)
Williams v State. 421 NW2d 890 (Iowa 1990)
~

~y

..

.

. Williams v. Smith, 717 F. Supp. 523 (WO MI 1989)
Wilson v Higgs. 940 F2d 664 (6th Cir 1991

.

.

.

.

.. '

105
27

.

S4
20

" 109
36

Willers v Vniteel States, 70 U.S. App. D.C. 316. 106 F2d 837.840 . . . . . . . . . . . . . . . . . . . . . . .. 102
Willers v VnitedStates. 70 U.S. App. D.C. 316,106 F2d 837, 840
42
Wolfe v Carlson, 582 F Supp 977 (SDNY 1984)
Wofjel v Bates. 707 F2d 935 (6th Cir 1983)

40
106

Wolfel v Morris. 972 F.2d 712 (6th Cir. 1992)
WofffvMeDom,ell, 418 US 539 (1974)

WofffvMeDom,ell.418US539(1974)
Wo1ffv. McDonnell, 418 US 539 (1974)

II
" .. 40
45.47
1.2.4-7.18.20,21.25,27.48.65.67.73.99-101

Wong v Coughlin. 138 AD2d 899, 526 NYS2d 640 (1988)
Woodby v Immigration & Naturalizatioll Selviee. 385 US 276 (1966)

, .. , 18
45

Woodby v IlIIlIIigratirm Se/viee. 385 US 276 (1966)
101
Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995) . .. . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . . .. .. 110
Works v State, 575 So 2d 622 (Ala Crim App 1991)
Wright v Cuspari. 779 F Supp 1025 (ED Mo 1992)
Wyko.ffvResig, 613 F.Supp 1504, otl513 (D.C. Ind. 1985)
Young v Kat",. 926 F Supp 1396 (3rd Cir 1991)
Young v Kallli. 926 F2d 1396 (3rd Cir 1991)
Young v Kam,. 926 F2d 1396 (3rd Cir 1991)
Young v Sels!y. 41 F.3d 47 (2nd Cir. 1994)
Zavara v Coughlin, 970 F2d 1148 (2d Cir 1992)

35
24

'

34.37
62
, .. ,. 32
100
107
46

Zell1,erv NelflJersey Dept. ofCon'. 201 NJ Super 195.492 A2d 1084 (App Div), eert dellied. 102 NJ
299.508 A2d 186 (1985)
,
53
Zilieh v. LOI,go, 34 F.3d 359, 364 (6th Cir. 1994) . .. .. . .. .. .. . . .. . .. . . .. .. . .. . . . . . . .
109