UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 00-20432

___________________________

MORRIS R. BROUSSARD,

Petitioner-Appellee,

VERSUS

GARY L. JOHNSON, Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellant.

___________________________________________________

Appeal from the United States District Court

For the Southern District of Texas

Houston Division

___________________________________________________ June 25, 2001

Before DAVIS, WIENER, STEWART, Circuit Judges.

PER CURIAM:

This is an appeal from the district court’s order granting the

application for habeas corpus filed by Morris Brous sard, a Texas

state prisoner, challenging a prison disciplinary conviction on due

process grounds. For the reasons that follow, we AFFIRM the

judgment of the district court.

I.

Broussard is an inmate in the Texas Department of Corrections,

Institutional Division, serving a ninety-nine y ear sentence. In

1991, a confidential info rmant advised the warden of the Eastham

Unit at which Broussard was incarcerated that Broussard and another

inmate, Lane , were planning an escape. The informant further

advised that, to facilitate their escape, the two inmates had2

hidden bolt cutters in the kitchen area, where both men worked.

The warden ordered Hammers, a captain at Eastham, to investigate

the tip, and a search of the kitchen confirmed the presence of the

bolt cutters. Broussard and Lane were charged with the possession

of contraband intended for use in an es cape, and both were found

guilty. The primary evidence offered at the prison disciplinary

hearings was the testimony of Captain Hammers, the investigating

officer. Hammers related the information provided to the warden by

the informant and confirmed that the bolt cutters had been found in

the commissary. Hammers had not interviewed the informant

personally, and did not know the identity of the informant or

anything about the informant. Captain Hammers knew only what the

warden had told him. The disciplinary hearing officer did not

allow the inmates to question Hammers as to the reliability of the

informant, nor did the hearing officer receive evidence from

Hammers in camera on the subject. The disciplinary hearing officer

found Broussard and Lane guilty, and the prisoners lost all “good

time” they had accumulated.

Broussard then filed a § 1983 civil rights complaint in the

district court, alleging that his due process rights had been

violate d during the disciplinary hearings. The magistrate judge

assigned to the case conducted a hearing pursuant to Flowers v.

Phelps , 956 F.2d 488, modified in part on other grounds, 964 F.2d

400 (5 th Cir. 1992). At the F lowers hearing, Warden Martin

testified in camera

, giving his r easons for concluding that the

confidential informant was credible and reliable. The warden1 See Preiser v. Rodriguez , 411 U.S. 475, 488-90 (1973);

Alexander v. Ware , 714 F.2d 416, 419 (5 th Cir. 1983).

3 admitted, however, that little, if any, of this information was

imparted to Captain Hammers before the disciplinary hearing. The

magistrate considered the testimony of the warden and all of the

other eviden ce presented in the disciplinary board hearing, and

recommended that the lawsuit be dismi ssed with prejudice.

Broussard objected to this recommendation. The district court

converted Broussard’s suit into a petition for writ of habeas

corpus (because the defendant seeks t he restoration of his goodtime credits) 1

, and granted the writ. The district court concluded

that Broussard’s right to due process had been violated because the

hearing officer failed to independently assess the reliability of

the confidential informant. The district court further held that

without the information provided by the confidential informant, no

competent e vidence was presented that supported the hearing

officer’s f indings. The district court ordered that Broussard’s

disciplin ary conviction be vacated and his good-time credits

reinstated, unless the Texas Department of Criminal Jus ticeInstitutional Division (TDCJ) provided him a ne w hearing within

ninety days. TDCJ now appeals that ruling.

II.

We begin by recognizing that “[p]rison disciplinary

proceedings are not part of a criminal prosecution, and the full

panoply of rights due a defendant in such proceedings does not

apply.” W olff v. McDonnell

, 418 U.S. 539, 556, 94 S. Ct. 2963,4

2975 (1974). The Supreme Court has recognized that prisoners do

not have a due process right to confrontation or cross-examination

during prison disciplinary proceedings. I d

. “Thus, the prisoner’s

right to call witnesses and present evidence in disciplinary

hearings can be denied if granting the request would be ‘unduly

hazardous to institutional safety or correctional goals.’” Ponte

v. Real , 471 U.S. 491, 495, 105 S. Ct. 2192, 2195 (1985) (quoting

Wolff

, supra

, at 566, 94 S. Ct. at 2974). However, due process

does require, a t a minimum, that there be “some evidence” in the

record to support the disciplinary decision. S uperintendent, Mass.

Correctional Inst. v. Hill

, 472 U.S. 445, 454, 105 S.Ct. 2768, 2774

(1985).

A.

The government does not contend that the evidence presented to

the hearing officer would permit the officer to find that the

confidential informant’s tip was reliable. Instead, the government

argues that due process concerns can be satisfied where additional

information supporting the reliability of a confidential informant

is presented in a later proceeding, after the disci plinary board

hearing.

As stated above , due process requires that there be some

evidence supporting the disciplinary determination. H ill

, 472 U.S.

at 454, 105 S.Ct. at 2774. It is clear that a bald assertion by an

unidentified person, without more, cannot constitute “some2 See, e.g.

, Taylor v. Wallace

, 9 31 F.2d 698, 701 (10 t h Cir.

1991).

3 See, e .g.

, H ensley v. Wilson

, 850 F.2d 269, 276 (6 th Cir.

1988); Wells v. Israel , 854 F.2d 995, 999 (7 th Cir. 1988); Taylor

, 931 F.2d at 702.

5 evidence” of guilt. 2 The courts generally require that the

d isciplinary board independently assess the reliability of the

informant’s tip based on some underlying factual information before

it can consider the evidence. 3 “The touchstone is

reliability...The disciplinary committee must make a reliability

determination prior to its decision...upon any...reasonable basis

having a factual underpinning.” Taylor , 931 F.2d at 702.

In Taylor

, the Tenth Circuit observed in dicta that additional

documentation supporting the reliability of the confidential

informant could be submitted to the district court at some time

after the conclusion of the disciplinary hearing. I d

. Similarly,

the Seventh C ircuit, in W ells

, reasoned that “the district court

may...give prison of f icials the opportunity to supplement the

administrative record.” Wells , 854 F.2d at 1000.

The government urges us to follow the reasoning of Wells and

Taylor and hold that petitioner’s due process rights have not been

violated, because information establishing the reliability of the

confidential informant was given by the warden, in camera , to the

magistrate judge in Broussard’s § 1983 case. We are not persuaded

by the government’s argument. In both W ells and Taylor

, the

testifying officer had some knowledge of the confidential

informant’s identity and the facts surrounding his reliability. In4 As the district court noted, the proceedings here did not

comply with the TDCJ’s rules governing the use of confidential

informants at disciplinary proceedings. TDCJ’s regulations

provide:

If information provided by a confidential informant will

be used at the disciplinary hearing as additional

evidence, the investigating officer must:

... b. have interviewed the informant(s) who must have some

knowledge of the incident/circumstances of the alleged

offenses; and determine how the knowledge was gained

which led the investigator to a conclusion of guilt;

...

e. testify at the disciplinary hearing that the testimony

of the confidential informant is believed to be reliable,

based upon his/her interview, and describe in general

terms the substance of the accusation and the conclusion

drawn therefrom...

Office for Disciplinary Coordination, TDCJ, Administrative

Memorandum–-Disciplinary No. 89-VI.E.4-01.

5 See Wells , 854 F.2d at 1000 ; Taylor , 931 F.2d at 702

.

6 our case, Captain Hammers had no knowledge of the identity of the

confidential info rmant, or any other fact supporting the

confidential informant’s reliability. 4 Where a witness gives

s ignificant general testimony to the disciplinary board t hat

supports a confidential informant’s reliability, we do not

foreclose the state from presenting additional details supporting

reliability to the board or a federal court in a later proceeding

inquiring into t he details of that witness’s knowledge. 5 In this

case, however, no evidence was presented to the disciplinary board

tending to support the confidential informant’s reliability. Under

these circumstances, we agree with the district court that the

prison disciplinary board violated Broussard’s right to due process

by considering the confidential informant’s tip as probative7

evidence.

B.

Prison disciplinary proceedings are overturned only where no

evidence in the record supports the decision. S ee Smith v.

Rabalais

, 659 F.2d 539, 545 (5 th Cir. 1981). The government argues

that the bolt cutters provide the necessary support for the

disciplinary board’s decision. When we disregard the confidential

informant’s tip, however, the only ev idence linking Broussard to

the bolt cutters is that they were fou nd in an area in which he

worked, but to which approximately one hundred inmates had access.

We agree with the district court that such evidence is insufficient

to satisfy even the “some evidence” standard of Superintendent v.

Hill

, supra

.

III.

For the above reasons, the judgment of the district court

conditionally granting Broussard’s petition for habeas corpus

reli ef is AFFIRMED. The TDCJ may provide Broussard with a new,

constitutionally adequ ate hearing within ninety days of the

issuance of our mandate. If such a hearing is not provided,

petitioner’s disciplinary conviction is hereby vacated and TDCJ is

ordered to reinstate his good time credits.

AFFIRMED.