JAMES EDWARD WAGNER, PETITIONER V. W. SEELY, ET AL.
   No. 90-6799
   In The Supreme Court Of The United States
   October Term, 1990
   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circuit
   Brief For The Respondents In Opposition
                            OPINIONS BELOW
   The order of the court of appeals (Pet. App. 1a-4a) /1/ is
unreported.  The order of the district court (id. at 1c-4c) and the
report and recommendation of the magistrate (id. at 1b-6b) are also
unreported.
                             JURISDICTION
   The judgment of the court of appeals was entered on October 2,
1990.  A petition for rehearing was denied on October 30, 1990.  Pet.
App. 1d.  The petition for a writ of certiorari was filed on December
26, 1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
                          QUESTIONS PRESENTED
   1. Whether petitioner's due process rights were violated because a
razor blade confiscated from his cell was not introduced into evidence
at his disciplinary hearing.
   2. Whether the evidence was sufficient to support petitioner's
claim that prison officials had a retaliatory motive for filing a
disciplinary proceeding against him.
                               STATEMENT
   After a disciplinary hearing at the United States Penitentiary in
Marion, Illinois, petitioner was found guilty of possessing a
sharpened instrument and being insolent to prison staff.  He was
sentenced to a term of 75 days' disciplinary segregation.  The United
States District Court for the Southern District of Illinois denied
petitioner's requests for legal and equitable relief.  The court of
appeals affirmed.  Pet. App. 1a-4a.
   1. On February 12, 1988, Officers Mills and George conducted a
routine search of petitioner's cell at the United States Penitentiary
in Marion, Illinois.  During the search, Mills discovered a razor
blade glued to an envelope.  George witnessed Mills' discovery.  The
officers notified their superior, and petitioner was taken to the
detention unit.  On the way to the detention unit, petitioner began
swearing at Mills in the presence of another officer.  As a result of
these incidents, petitioner was charged with possession of a sharpened
instrument and insolence toward prison staff.  Pet. App. 1a-2a;  Gov't
C.A. Br. 4.
   After a hearing before Disciplinary Hearing Officer William Seely
on February 23, 1988, petitioner was found guilty of the two charged
offenses and sentenced to 75 days in disciplinary segregation.  Pet.
App. 2a;  Gov't C.A. Br. 4.
   2. On June 10, 1988, petitioner filed this Bivens /2/ action in the
district court, alleging that (1) respondents fabricated the evidence
that led to the disciplinary charges against him;  (2) the
disciplinary action was in retaliation for his previous lawsuits and
administrative actions against prison officials;  and (3) he was
denied due process at his hearing because the razor blade confiscated
from his cell was not admitted into evidence.  In addition, petitioner
moved for a temporary restraining order and a preliminary injunction,
asserting that prison officials should be enjoined from retaliating
against him for remaining silent at disciplinary hearings.  Pet. App.
2a, 1b.  Petitioner's request for injunctive relief and respondents'
motion for dismissal of petitioner's claims or, in the alternative,
for summary judgment were referred to a United States magistrate.
   The magistrate recommended (1) dismissal of petitioner's claim of
fabricated disciplinary charges, (2) entry of summary judgment on
petitioner's remaining claims, and (3) denial of petitioner's request
for injunctive relief.  Pet. App. 6b.  With respect to petitioner's
fabricated evidence claim, the magistrate noted (id. at 2b) that
petitioner did not dispute that at the hearing on the disciplinary
charges he had received the procedural protections outlined in Wolff
v. McDonnell, 418 U.S. 539 (1974).  Relying on Seventh Circuit
precedent, the magistrate ruled that, since the protections of Wolff
had been afforded, petitioner's claim of false disciplinary charges
did not state a constitutional violation.  Pet. App. 2b (citing
Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984)).  With respect
to petitioner's due process claim, the magistrate observed that
introduction of physical evidence is not required at a prison
disciplinary hearing so long as "some evidence supports the decision
to impose disciplinary sanctions." Pet. App. 3b (citing Superintendent
v. Hill, 472 U.S. 445, 455 (1985)).  He ruled that "ample evidence"
supported the hearing officer's decision that petitioner had committed
the charged violations.  Pet. App. 3b.  With respect to petitioner's
claim of retaliation, the magistrate found (id. at 4b-5b) that the
chronology of events presented by petitioner did not support a
reasonable inference of retaliation.  /3/ Finally, the magistrate
recommended denial of petitioner's motion for a temporary restraining
order (id. at 5b-6b), because that motion concerned different prison
officials and a different disciplinary proceeding from the one on
which petitioner's suit was based.
   On de novo review of petitioner's claims (Pet. App. 1c), the
district court agreed with the magistrate's recommendations (id. at
2c-4c).  The court accordingly dismissed petitioner's claim of
fabricated disciplinary charges, granted summary judgment against
petitioner on his remaining claims, and denied petitioner's request
for a preliminary injunction.  Id. at 4c.
   3. The court of appeals affirmed.  Pet. App. 1a-4a.  The court
first found (id. at 2a) that, "(a)lthough (petitioner) has shown that
he has resorted to administrative and judicial proceedings prior to
the instant case, he has not alleged any connection between the prior
cases and this case which is sufficient to permit an inference of
retaliation." The court therefore concluded (id. at 3a) that the
district court had properly dismissed petitioner's retaliation claim.
   Next, finding (Pet. App. 3a-4a) that petitioner had been provided
the due process protections set forth in Wolff v. McDonnell, 418 U.S.
at 563-567, and that "ample evidence" supported the hearing officer's
decision (Superintendent v. Hill, 472 U.S. at 455), the court held
(Pet. App. 4a) that petitioner's claim that the officers planted the
razor blade in his cell did not state a claim on which relief could be
granted, and that the failure to produce the razor blade at his
hearing did not violate his due process rights.  Finally, after noting
(id. at 4a) that petitioner's motion for injunctive relief challenged
an action taken in "a separate disciplinary proceeding involving
defendants other than those named in this action," the court held
(ibid.) that the district court had correctly denied relief, because
the challenged action "was not properly before it."
                               ARGUMENT
   1. Petitioner renews his contention (Pet. 6-10) that his due
process rights were violated because prison officials did not
introduce the razor blade confiscated from his cell at the
disciplinary hearing.  The court of appeals properly rejected that
contention.
   In the first place, petitioner did not request the production of
this evidence either before or during his disciplinary hearing.  See
C.A. App. 28 (Affidavit of William Seely, Paragraph 7).  In addition,
the applicable regulations, 28 C.F.R. Part 541, do not require the
production of physical evidence at disciplinary hearings.  /4/
   Nor is any such requirement imposed by the Constitution.  As this
Court stated in Wolff v. McDonnell, 418 U.S. at 556, "there must be
mutual accommodation between institutional needs and objectives and
the provisions of the Constitution that are of general application."
The conduct of disciplinary proceedings in a prison must accommodate
the need to maintain security and to provide expeditious
determinations of disciplinary charges.  C.A. App. 28-29 (Affidavit of
William Seely, Paragraphs 10-12);  see also Bell v. Wolfish, 441 U.S.
520, 554 (1979) (prisoner's due process rights are "subject to
reasonable limitation or retraction in light of the legitimate
security concerns of the institution").  Those needs provide
compelling reasons for not requiring the production of confiscated
contraband in such proceedings, especially where, as here, no request
for production has been made.
   In prison disciplinary hearings, "due process * * * requires only
that there be some evidence to support the findings made in the
disciplinary hearing." Superintendent v. Hill, 472 U.S. at 457.  To
ascertain whether this standard is satisfied "does not require
examination of the entire record, independent assessment of the
credibility of witnesses, or weighing the evidence.  Instead, the
relevant question is whether there is any evidence in the record that
could support the conclusion reached by the disciplinary board." Id.
at 455-456.  In the present case, this standard was clearly satisfied.
 The hearing officer based his decision on the written statements of
the correctional officers who recovered the razor blade from
petitioner's cell and who witnessed his abusive conduct toward prison
staff.  The hearing officer determined that these statements were more
credible than petitioner's version of the events.  C.A. App. 27-29
(Affidavit of William Seely, Paragraphs 6, 14);  id. at 43-44
(statements of Officers Taylor and George).
   Petitioner's reliance (Pet. 5, 8) on an alleged violation of the
regulation prescribing procedures for handling confiscated contraband
is misplaced.  /5/ First, this regulation does not require the
production of contraband at disciplinary hearings.  Moreover, it is
not clear on this record that prison officials violated the procedures
described in the regulation.  /6/ Finally, petitioner could not have
been prejudiced by any failure to follow these procedures, because
introduction of the confiscated weapon would only have further
inculpated him.  /7/
   None of the cases on which petitioner relies supports his
contention that his due process rights were violated.  The "sole
question" before the Court in Cleavinger v. Saxner, 474 U.S. 193, 199
n.5 (1985), was whether disciplinary hearing officers are entitled to
absolute or qualified immunity.  The prison officials in Cleavinger
did not challenge determinations by the triers of fact that the
hearing procedures employed in that case violated the inmate's
constitutional rights.  Ibid.  In contrast, the triers of fact in the
present case have consistently ruled against petitioner's challenge to
the hearing procedures.  Cleavinger is therefore wholly inapposite.
   Young v. Lynch, 846 F.2d 960 (4th Cir. 1988), is likewise
inapposite.  The evidence at issue there was critical to the
prisoner's defense, and the prisoner timely requested its production.
Young, 846 F.2d at 961-964.  In contrast, the evidence at issue here
was inculpatory and was not sought by petitioner at any time prior to
or during the hearing.  Moreover, as petitioner concedes (Pet. 6-7),
the court in Young emphasized that its holding in that case should not
be read to require the introduction of physical evidence in every
disciplinary hearing.  846 F.2d at 964.
   For similar reasons, the Seventh Circuit decisions on which
petitioner relies are inapposite.  /8/ The court in Viens v. Daniels,
871 F.2d 1328, 1336 n.2 (7th Cir. 1989), stated in dictum that a
disciplinary body cannot refuse to consider exculpatory evidence
"simply because the record already contains the minimal evidence
suggesting guilt." That statement does not apply here, since the
evidence at issue was not exculpatory and was never requested.
Moreover, the Viens court rejected a prisoner's challenge to a
disciplinary action.  It held that no due process violation occurred
when hearing officials refused petitioner's request to examine
physical evidence and to call certain witnesses.  Id. at 1329, 1336.
Although the excluded evidence in Viens would have "undermine(d) the
reliability" of the evidence suggesting guilt, the court "(could not)
conclude that the evidence (of guilt) was so unreliable that it could
not constitutionally have served as the basis for the (disciplinary)
action." Id. at 1335.  While the court in Chavis v. Rowe, 643 F.2d
1281, 1285-1286 (7th Cir.), cert. denied, 454 U.S. 907 (1981), upheld
a prisoner's challenge to the failure of officials to disclose an
exculpatory eyewitness statement, the court also recognized that there
may be "situations in which prison officials reasonably fear that
disclosure of (evidence) * * * may cause disruption or danger." As
explained, that observation fully applies to the production of
contraband, such as the razor blade whose admission was sought here.
/9/
   In Soto v. Lord, 693 F. Supp. 8, 17-20 (S.D.N.Y. 1988), prison
officials failed to follow prescribed procedures for the introduction
of inculpatory evidence, a urine specimen that tested positive for
drug use.  As a result, the hearing official based the disciplinary
action against the prisoner in that case solely on an "inaccurate and
incomplete" form indicating that the specimen was the prisoner's.  Id.
at 18.  The court in Soto held that this evidence fell below the
minimum required for due process.  Id. at 20.  That holding does not
apply here, because the disciplinary action against petitioner was
supported by "ample evidence." Pet. App. 4a, 3b.  /10/
   2. Petitioner challenges (Br. 10-11) the court of appeals'
determination that his showing of retaliation was insufficient to
withstand a motion for summary judgment.  That fact-bound challenge is
without merit.
   The chronology offered by petitioner to support his retaliation
claim refers to prior litigation against prison officials other than
respondents, Wagner v. Williford, CV No. 85-4553 (S.D. Ill.), and
Wagner v. Henman, CV No. 87-3910 (S.D. Ill.);  alleged harassment of
him and other prisoners by the prison guards in his unit;  and a
threat by petitioner to file an administrative complaint against
Officer Mills.  In addition to these recitals, which concern events
prior to the disciplinary proceeding that led to the present suit, the
chronology cites the proceeding itself and a subsequent, allegedly
improper disciplinary proceeding as evidence of retaliation.  Pet.
App. 4b;  Pet. 4-5;  Gov't C.A. Br. 7.
   Although when deciding a motion for summary judgment a court must
view any inferences drawn from the record in the light most favorable
to the non-moving party, the court is only required to draw reasonable
inferences;  it is not required to draw every conceivable inference
that the record might suggest.  See Bartman v. Allis-Chalmers Corp.,
799 F.2d 311, 312-313 (7th Cir. 1986), cert. denied, 479 U.S. 1092
(1987).  In prison discipline cases, it is not enough that the
prisoner merely alleges the ultimate fact of retaliation.  Benson v.
Cady, 761 F.2d 335, 342 (7th Cir. 1985);  see Moody v. Baker, 857 F.2d
256, 258 (5th Cir.), cert. denied, 488 U.S. 985 (1988).  Instead, "the
prisoner must allege a chronology of events from which retaliation may
plausibly be inferred." Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th
Cir. 1988);  Murphy v. Lane, 833 F.2d 106, 108-109 (7th Cir. 1987).
   In the present case, as the magistrate, the district court, and the
court of appeals correctly found (Pet. App. 4b-5b, 3c-4c, 2a-3a),
petitioner's chronology did not support a plausible inference that the
instant disciplinary action was retaliatory.  In the court actions to
which petitioner refers, none of the respondents were named as
defendants.  And neither petitioner's threat to complain about Officer
Mills nor petitioner's general allegations of harassment show, without
more, a retaliatory motive on the part of the officers.  In the
absence of evidence supporting a reasonable inference that the
charging officers had such an impermissible motive, the courts below
correctly concluded that the entry of summary judgment against
petitioner was proper.
   The cases cited by petitioner do not support a contrary conclusion.
 /11/ In Celotex Corp v. Catrett, 477 U.S. 317, 322-323 (1986), the
Court held that when a party resisting summary judgment fails to make
a sufficient showing of an essential element of its case as to which
it has the burden of proof, the moving party is entitled to summary
judgment as a matter of law.  That holding fully applies here.  The
courts below concluded that petitioner's allegations were inadequate
to support his retaliation claim.  /12/ Petitioner provides no basis
for setting aside those determinations.
                              CONCLUSION
   The petition for a writ of certiorari should be denied.
   Respectfully submitted.
   KENNETH W. STARR
      Solicitor General
   ROBERT S. MUELLER, III
      Assistant Attorney General
   THOMAS M. GANNON
      Attorney
   MAY 1991
   /1/ For the Court's convenience, we shall treat the appendices and
exhibits to the petition as a single, four-part appendix, with the
order of the court of appeals appearing at Pet. App. 1a-4a, the
magistrate's report and recommendation at 1b-6b, the district court's
order at 1c-4c, and the order of the court of appeals denying
rehearing at 1d.
   /2/ Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971).
   /3/ The magistrate summarized petitioner's chronology as follows
(Pet. App. 4b):
         1. On January 22, 1985, (petitioner) filed a motion to name
      Officer Schlitt as an additional defendant in one of his pending
      cases.  (Petitioner) states that Officer Schlitt knew of
      (petitioner's) intentions and of (petitioner's) complaints to
      supervising officers concerning Schlitt's conduct.
         2. On February 7, 1988, (petitioner) told (respondent) Mills
      that he "was going to file a complaint against him for not
      giving inmates enough time for haircuts and phone calls."
         3. On February 12, 1988, service was effected on unnamed
      Marion prison officials in one of (petitioner's) other lawsuits.
         4. On February 12, 1988, (respondents) Mills and George
      accused (petitioner) of concealing a razor blade in his cell and
      of making insolent remarks.
         5. The officer involved in the charge of disciplinary
      misconduct and the disciplinary hearing officer refused to
      produce the razor blade or other physical evidence to support
      the charge.
         6. Other prison officials have harassed (petitioner) and
      other inmates on various occasions.
         7. On February 6, 1989, disciplinary hearing officer
      Jefferson imposed consecutive disciplinary hearing sanctions for
      a single act of misconduct.
   /4/ 28 C.F.R. Part 541 sets forth procedures governing inmate
discipline and special housing units.  Section 541.17 ("Procedures
before the Discipline Hearing Officer") provides for the presentation
of documentary, but not physical, evidence at disciplinary hearings.
28 C.F.R. 541.17(c).
   /5/ 28 C.F.R. 553.13(c) in pertinent part provides:
         Staff shall retain items of hard contraband for disciplinary
      action or prosecution or both.  * * *.  When it is determined
      that the item is not needed for criminal prosecution, the hard
      contraband shall be destroyed * * *.  When it is determined that
      the item is not needed for criminal prosecution, the hard
      contraband shall be destroyed * * *.  Written documentation of
      the destruction shall be maintained for at least two years.
   /6/ Petitioner alleges (Pet. 8) that the government conceded its
failure to follow the procedures set forth in 28 U.S.C. 553.13(c), but
this concession does not appear clearly in the record.  Officer Mills
stated merely that he had turned the razor blade over to his
lieutenant for disposition (C.A. App. 48), and the government's
position on the matter in the court of appeals is ambiguous.  See
Gov't C.A. Br. 14-15.  Petitioner's related assertions (Pet. 7, 9)
that the officers acted in bad faith are utterly without support in
the record.
   /7/ Petitioner asserts (Pet. 9) that the alleged failure of prison
officials to record the disposition of the razor blade was exculpatory
information.  Petitioner presumably would argue that this information
would have supported his contention that he was framed.  A failure to
account for the disposition of evidence would not support a charge of
fabrication, however, unless it was claimed either that the evidence
never existed in the first place or that the evidence, if examined,
would establish innocence.  Petitioner has never disputed the
existence of the razor blade;  rather, he asserts that it was planted
in his cell.  An examination of the razor blade would have no tendency
to support this assertion.
   /8/ Moreover, any disagreement between the decision below and other
Seventh Circuit decisions is for that court to resolve.  See
Wisniewski v. United States, 353 U.S. 901 (1957).
   /9/ Similarly, the prisoner's challenge in Caldwell v. Miller, 790
F.2d 589, 609-610 (7th Cir. 1986), was sustained because prison
officials had not shown that their refusal to allow a prisoner to send
his confiscated books out of the prison was related to a legitimate
security need.  That decision is inapposite because security concerns
clearly justify the absence of a requirement for production of
confiscated contraband at disciplinary hearings.
   /10/ In any event, conflicts between the district courts and the
courts of appeals do not warrant certiorari.  See R. Stern, E.
Gressman & S. Shapiro, Supreme Court Practice Section 4.8 (6th ed.
1986).
   /11/ Most of the cases cited by petitioner involve actions under
various statutes based on claims of racially motivated conduct.  No
such claims are made here.  See Greenwood v. Peacock, 384 U.S. 808
(1966) (addressing right of private civil rights workers to remove
state criminal prosecutions to federal court under 28 U.S.C. 1443);
United States v. Guest, 383 U.S. 745, 753-757 (1966) (holding that
allegations of state involvement in a conspiracy to deprive plaintiffs
of their civil rights were sufficient to charge a violation of rights
under the Fourteenth Amendment);  Griffin v. Breckenridge, 403 U.S.
88, 102-103 (1971) (showing required to establish injury and
class-based discrimination under 42 U.S.C. 1985(3));  Taylor v.
Gilmartin, 686 F.2d 1346, 1357-1358 (10th Cir. 1982) (same), cert.
denied, 459 U.S. 1147 (1983).
   /12/ In Buise v. Hudkins, 584 F.2d 223, 228, 232 (7th Cir. 1978),
cert. denied, 440 U.S. 916 (1979), the court set aside as clearly
erroneous a finding that petitioner had not been transferred in
retaliation for his exercise of his constitutional rights.  In the
present case, in contrast, both courts below found that petitioner
failed even to allege facts that would reasonably support his claim of
retaliation.