United States Court of Appeals

Fifth Circuit



## FILED

December 14, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-21067

DANNY RICHARDS,

Petitioner-Appellee,

versus

DOUG DRETKE, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Doug Dretke, Director of the Texas Department of Criminal

Justice, Correctional Institutions Division, appeals a district

court judgment granting a petition for writ of habeas corpus by

inmate Danny Richards (Richards). The judgment vacated a guilty

finding against Richards in a prison disciplinary hearing. We

conclude that there is some evidence to support the disciplinary

decision, and accordingly reverse the district court’s judgment.1 At the time Richards was notified, he signed a waiver of his right to 24-

hour notice of the hearing, but the hearing was held more th an 24 hours later

nonetheless.

2 Facts and Proceedings Below

Richards has been serving a fifty-year Texas prison sentence

since 1989 for possession of a controlled substance. On July 20,

2002, a fight occurred in a day r oom at the prison in which an

inmate named Jerry Rotenberry (Rotenberry) was injured from being

hit and kicked. None of the prison’s staff witnessed the fight.

On August 29, 2002, Richards was notified that he was charged with

partici pating in an assault on Rotenberry during the July 20

fight. 1 A “counsel substitute” assigned to Richards obtained

statements from three witnesses Richards named. Richards read two

of these statements into the record at the hearing held on August

30, 2002, but did not read the third, from Rotenberry. Richards’s

c ounsel substitute admitted at the hearing that Rotenberr y’s

statement was “definitely detrimental to” Richards.

The offense report prepared by the charging officer, Sergeant

Burson, was submitted at the hearing. The report includes the

statement that “Offender Rotenberry identified offenders Adams,

Richards and Formby as the offenders who kicked him while he was on

the floor of the dayroom.” Sgt. Burson testified at the hearing

that he did not witness the assault, and that his conclusion that

Richards had been involved in the assault was based on his

investigation. Richards was unable to elicit at the hearing the2 I.O.C. stands for Inter-Office Communication, STGO for Security Threat

Group Office, which Sgt. Burson was affiliated with, and O.I.G. for Office of the

Inspector General, which Mr. Knight was affiliated with. The “pictures” were

apparently photographs of Rotenberry’s bruises.

3 The report is also referred to herein as the “confidential report.”

4 One inmate is identified as a “Confidential Informant,” with his age, race

and sentence given.

3 name of anyone (other than Rotenberry) who had identified him to

Sgt. Burson as having participated in the assault. The hearing

officer found Richards guilty and assessed punishment including a

loss of thirty days good-time credit. On the hearing record, the

hearing officer listed as his evidenc e and reasons for

determination of guilt “Officer’s report” (by circling a preprinted

option), “officer’s live testimony,” and “IOC’s Sgt Burson STGO and

Mr. Knight O.I.G./pictures.” 2

The interoffice communication from Sgt. Burson listed by the

hearing officer was a report filed with the district court under

seal, to protect the identities of the inmates inter viewed by

Burson. 3 The report summarizes Sgt. Burson’s interviews of twelve

inmates, including Richards and Rotenberry. With one exception,

the report gives the name, age, r ace, and nature of the sentence

being served for each of the inmates intervi ewed. 4 Five of the

inmates, including Rotenberry, identified Richards as one of

Rotenberry’s attackers. At least three of these inmates, including

Rotenberry, identified Richards using a photo line-up. Five of the

inmates, including Richards, though acknowledging being present in

the day room during the incident, claimed not to know anything4

about who was involved. The other two inmates gave some details

about the overall altercation, which had several participants, but

apparently did not witness the assault on Rotenberry and gave no

information on Rotenberry’s assailants.

A fter exhausting appeals within the prison system, Richards

filed a petition for writ of habeas corpus with the district court

in November of 2002. Finding that Sgt. Burson’s report did not

include information on the reliability of the interviewed inmates

or their statements, the court held that due process requirements

were not met. The court granted Richards’s petition for writ of

habeas corpus and ordered the Department of Criminal Justice to

vacate the finding of guilt in the disciplinary hearing, and to

either grant a new hearing or reinstate Richards’s good-time

credit. Finally, the court granted in part a motion by Richards

for discove ry in the event of a new hearing, with respect to any

statements Rotenberry made to investigating officers.

Discussion

I. Standard of Review

With regard to requests for federal habeas corpus relief, we

review a district court’s findings of fact for clear error and

decide issues of law de novo

. Dyer v. Johnson , 108 F.3d 607, 609

(5th Cir. 1997). The legal standard for due process in prison

disciplinary hearings is that there be “some evidence” to support

the disciplinary decision. S uperintendent, Mass. Correctional5 A 30-day delay of a mandatory supervision release might be de minimis and

therefore not give rise to a due process claim. The M alchi court held that while

a few days might be de minimis

, si x months was not. M alchi

, 211 F.3d at 958.

That issue, however, is not before us as it has not been raised by Dretke, who

has not contested Richards’s liberty interest o r that he would be entitled to

some federal ha b eas relief if there were not the requisite “some evidence” to

support the disciplinary decision or if the proceedings otherwise violated his

due process rights.

5 Inst. v. Hill

, 105 S.Ct. 2768, 2774 (1985). Whether there is “some

evidence” is an issue of law reviewed de novo

. H udson v. Johnson

,

242 F.3d 534, 535 (5th Cir. 2001).

II. Due Process in Prison Disciplinary Hearings

Whether a denial of good-time credits creates a liberty

interest protected by procedural due process is determined by state

law. H udson

, 242 F.3d at 535–36. Under the Texas statutory scheme

in place at the time of Richards’s conviction in 1989, Richards was

eligible for release to mandatory supervision at a date determined

in part by his accr ued good conduct time. Tex. Code Crim. Proc.

Ann. art. 42.18, §8(c) (Vernon 1988). We therefore assume that

Richards has a liberty interest in his good-time credits. Malchi

v. Thaler , 211 F.3d 953, 957–58 (5th Cir. 2000). 5

When there is a prot ected liberty interest in good-time

credit, the United States Supreme Court has held that due process

demands only that there be “some evidence” to support a

disciplinary officer’s decision. S uperintendent, Mass.

Correctional Inst. v. Hill

, 105 S.Ct. 2768, 2774 (1985). “The

fundamental fairness guaranteed by the Due Process Clause does not

require courts to set aside decisions of prison administrators that6

ha ve some basis in fact.” I d. The Court noted that a reviewing

court is not required to examine the entire record of a proceeding,

independently assess witn ess credibility, or weigh the evidence.

Id. Minimum procedures that must be followed in disciplinary

hearings include 1) providing advance written notice to the accused

of the claimed violation, 2) providing a written statement by the

factfinder of the evidence relied upon and reasons for the

disciplinary action taken, and 3) allowing the ac cused inmate to

“call witnesses and present documentary evidence i n his defense

when permitting him to do so will not be undu ly hazardous to

institutional safety or correctional goals.” Wolff v. McDonnell

,

94 S.Ct. 2963, 2979 (1974).

III. Richards’s Disciplinary Hearing

In holding that Richards was denied due process based on a

finding that Sgt. Burson’s confidential r eport did not include

information on the reli ability of the inmates interviewed, the

district court apparently applied a standard imposed when guilty

findings are based on the word of confidential informants. In this

circuit and others, “some evidence” must constitute more than

information f rom a confidential informant, when no evidence is

presented to the disciplinary official tending to support the

informant’s reliability. B roussard v. Johnson

, 253 F.3d 874,

876–77 (5th Ci r. 2001). Testimony as to the reliability of a

confidential informant and the informant’s firsthand knowledge can6 The district court was unsure whether Sgt. Burson’s report was submitted

to the hearing officer. However, both the hearing officer’s written record of

the disciplinary hearing and his stateme nt on the hearing tape cite an

interoffice com

munication from Sgt. Burson as being among the evidence

considered. The only interoffice communication from Sgt. Burson in the record

is the confidential report.

7 be sufficient evidence of the informant’s reliability. S mith v.

Rabalais

, 659 F.2d 539, 541, 546 (5th Cir. 1981). An

identification of an accused inmate in a written report by an

officer who witnessed the infraction can also be sufficient

evidence to support a finding of guilt. H udson v. Johnson 242 F.3d

534, 536–37 (5th Cir. 2001).

The problem with application of this reliability standard in

the instant appeal is that Richards was not found guilty based on

the word of confidential informan ts. Although the identities of

the interviewed inmates were withheld from Richards for their

protection, the investigating officer knew all of the inmates’

identities and the hearing officer knew all but one. 6 This is in

contrast to the situation in B roussard

, in which neither the

investigating officer nor the hearing officer knew the identity of

a confidential informant (known onl y to the warden) accusing the

disciplined inmate. Broussard , 253 F.3d at 875. Because most of

the inmates interviewed by Sgt. Burson were not “confidential” with

respect to eit her the hearing officer or Sgt. Burson, it is not

clear that the reliability determination described in Broussard is

required in the case of Richards’s hearing. Id. at 876.8

Even to the extent a reliability d etermination might be

n eeded, the confidential report contains sufficient indicia of

reliability. Contrary to the district court’s finding, the report

does contain information that could be used by the hearing officer

in assessing reliability of the interviewed inmates. For example,

because Sgt. Burson’s report describes the fight as being between

black and white inmates, the information provided as to the race of

each inmate interviewed may be relevant to reliability in this

case. The report further indicates that each interviewed inmate

was present in the day room during the figh t and therefore had

firsthand knowledge . Firsthand knowledge is an indicator of

reliability. S mith

, 659 F.2d at 541, 546. Moreover, the multiple

inmate statements implicati ng Richards tend to corroborate each

other on various details of the fight, such as the specific

argument that set off the fight, which inmates it started with, and

the sequence of the inmates involved. Some of these details are

further corroborated by the statements of the two inmates who had

information on parts of the fight but not specifically on the

assault on Rotenberry. Multiple corroborating accounts have also

been recognized as an indicator of reliability. Wells v. Israel

,

854 F.2d 995, 1000 (7th Ci r. 1988) (“[L]etters from different

inmates corroborate and confirm material details.”).

Not only is the confidential report “some evidence” in support

of Richards’s guilty finding, but there is other evidence as well.9

In the witness statements he submitted at the disciplinary hearing

and in his briefs to the district and appellate courts, Richards

makes clear that the fight did take place on the date in question

in the day r oom, and that he was present at the time. Richards

further admits that Rotenberry has identified him as an assailant.

Richards d i sputes Rotenberry’s credibility on the ground that

Rotenberry did not identify Richards immediately after the fight,

but a month later after Sgt. Burson had interviewed other inmates.

Credibility determinations are the province of the hearing officer,

however. Hudson , 242 F.3d at 537.

Comparison of the case against Richards to those against

accused inmates in some of our previous cases further illustrates

that there is sufficient evidence to support the hearing officer in

finding Richa rds guilty. In B roussard

, an informant told the

warden that an inmate planned an escape attempt and had hidden bolt

cutters in the kitchen area of the prison. B roussard

, 253 F.3d at

875. The warden relayed the information to the investigating

officer, withholding the name of the informant. The investigating

officer found the bolt cutters in the kitchen, and the accused

inmate was found guilty in a disciplinary hearing and lost all of

his accumulated good-time cr edit. I d. This court held that the

inmate did not receive due process because neither the

investigating officer nor the hearing officer knew the identity of

the confidential informant, and no information on the reliability10

of the informant was provided to the hearing officer. I d. at

876–77. Without the informant’s information, the bolt cutters were

linked to the accused inmate only by the fact that he, along with

abo ut one hundred other inmates, had access to the area in which

t hey were found. I d. at 877. The case against Richards is far

stronger than that against the inmate in Broussard : the identities

of all but one of the witnesses implicating Richards were known to

the hearing officer (and the identities of all were kno wn to the

investigating officer), and Richa rds was undisputedly present in

the day room at th e time of the incident, rather than being

connected only through having access to the room.

In Smith

, an inmate was found guilty in a disciplinary hearing

of dealing in narcotics. S mith

, 659 F.2d at 541. The only

evidence against the inmate was testimony from the investigating

officer tha t one or more confidential informants had implicated

him. I d. The disciplinary board making the decision knew neither

the id entities of the informants nor any details of the

confidential information. I d. at 546 n.20. Nor was the defendant

informed of the identity of any of them. Because the investigating

officer testified that the informants had firsthand knowledge and

had been reliable in the past, this court held that the

disciplinary hearing met constitutional requirements. I d. at 546.

Again, the case against Richards is stronger than that against the

i nmate in Smith

. The hearing officer knew identities of almost11

all of the witnesses against Richards, and had complete details of

their statements.

Conclusion

The evidence agains t Richards, including the offense report

and confidential report of the investigating officer and Richards’s

own admissions, is more than sufficient to meet constitutional due

process requirements. The judgment of the district court is

accordingly

REVERSED.