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.