Terry Zimmerlee v. J.C. Keeney, Superintendent, Oregon State Penitentiary

dissenting:

I dissent. Because I believe that Zimmerlee was denied due process, I would reverse the district court’s denial of Zimmerlee’s petition for a writ of habeas corpus.

The majority correctly states that under Wolff v. McDonnell, 418 U.S. 539, 563 , 94 S.Ct. 2963, 2978 , 41 L.Ed.2d 935 (1974), due process requirements are satisfied if prisoners subject to disciplinary action receive “advance written notice of the claimed violation and a written statement of the fact finders as to the evidence relied upon and the reasons for the disciplinary action taken.” Due process also allows prisoners to call witnesses in their defense when this practice does not threaten “institutional safety or correctional goals.” Wolff, 418 U.S. at 566 , 94 S.Ct. at 2979 . In reviewing prison hearing officers’ decisions, we are required to determine whether they are supported by “some evidence.” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.1987).

I believe Zimmerlee was denied due process in three respects. First, he was not given fair notice of the claimed disciplinary violation. All he was told was that he was accused of smuggling contraband into the prison sometime between February 13, 1984,…

After a disciplinary hearing at which the board found that an Oregon state prisoner had distributed narcotics within the prison, he was sentenced to six months segregation. He filed a petition for a writ of habeas corpus which the district court dismissed. We affirm.

FACTS

Terry Zimmerlee is a prisoner at the Oregon State Penitentiary and a member of the Screaming Eagles Motorcycle Workshop Club. Captain Baldwin filed a misconduct report against Zimmerlee based on an informant’s testimony that between February and July 1984 Zimmerlee and other members of the Club smuggled drugs into the prison and that on at least one occasion during a Club meeting he had received drugs from inmate Baker. Zimmerlee was given notice of the basis for the charge. A hearing was begun on August 15th, postponed to allow the investigator time to pursue questions posed by Zimmerlee to his witnesses and reconvened on September 6th. Verbatim records were made of each hearing.

The hearing officer found that Zimmerlee was guilty of the manufacture or use of dangerous contraband and assessed six months segregation. The Oregon Court of Appeals and the Oregon Supreme Court denied Zimmerlee’s petition for…

831 F.2d 183 Terry ZIMMERLEE, Plaintiff-Appellant, v. J.C. KEENEY, Superintendent, Oregon State Penitentiary, Defendant-Appellee. No. 86-4344. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 8, 1987. Decided Oct. 27, 1987. Marianne D. Bachers, Eugene, Or., for plaintiff-appellant. Rives Kistler, Salem, Or., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before WRIGHT, WALLACE and PREGERSON, Circuit Judges. PER CURIAM: 1 After a disciplinary hearing at which the board found that an Oregon state prisoner had distributed narcotics within the prison, he was sentenced to six months segregation. He filed a petition for a writ of habeas corpus which the district court dismissed. We affirm. FACTS 2 Terry Zimmerlee is a prisoner at the Oregon State Penitentiary and a member of the Screaming Eagles Motorcycle Workshop Club. Captain Baldwin filed a misconduct report against Zimmerlee based on an informant's testimony that between February and July 1984 Zimmerlee and other members of the Club smuggled drugs into the prison and that on at least one occasion during a Club meeting he had received drugs from inmate Baker.…