Inmate's Due Process Appeal
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3d 338
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Gerald MONTGOMERY, Plaintiff-Appellant,
v.
EL PASO COUNTY SHERIFF'S DEPARTMENT, Major
Alexander,
Captain Santiago, Lt. Hilte, Sgt. Bowers, Deputy
Richards, Defendants-Appellees.
No. 94-1439.
United States Court of Appeals, Tenth Circuit.
April 13, 1995.
ORDER AND JUDGMENT1
Before MOORE, BARRETT, and EBEL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case
is ordered submitted without oral argument.
Plaintiff-Appellant Gerald Montgomery ("Montgomery") filed this claim pro se
under 42 U.S.C.1983 complaining of actions taken by Defendants-Appellees,
the El Paso County Sheriff's Department and various department officials,
when Montgomery was an inmate in the El Paso County Jail. In particular,
Montgomery alleges that Defendants violated his rights under the Due Process
Clause when they did not permit him to call witnesses or present other evidence
at a disciplinary hearing and then placed him in disciplinary segregation,
thereby also impacting his good time credits and jail release date. The district
court dismissed Montgomery's claim sua sponte as frivolous under 28
U.S.C.1915(d) based on the report and recommendation of a magistrate. We
now reverse and remand because we conclude that Montgomery has stated a
colorable claim sufficient to withstand dismissal under 1915(d). 2
3
Courts may dismiss in forma pauperis complaints as "frivolous" under 28
U.S.C.1915(d) if they rely on "inarguable legal conclusion[s]" or "fanciful
factual allegation[s]." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legal
claims may be sufficiently arguable to avoid dismissal as frivolous even if they
would be dismissed for failure to state a claim on a close question of law. Id. at
328-29. Moreover, plausible factual allegations should not be deemed frivolous
under 1915(d) even if they lack evidentiary support. Templeman v. Gunter, 16
F.3d 367, 369 (10th Cir.1994). However, dismissal is appropriate where the
allegations do not support even an arguable claim. Neitzke, 490 U.S. at 327.
We review the district court's dismissal for abuse of discretion. Templeman, 16
F.2d at 369.
In the present action, the district court adopted the magistrate's
recommendation that Montgomery's claim was frivolous because Montgomery
failed to show that he was entitled to more process than he received. In
particular, the magistrate--relying on Hewitt v. Helms, 459 U.S. 460, 476
(1983), and McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir.1983)--stated that
prisoners like Montgomery facing restrictive segregation are only entitled to
notice and an opportunity to be heard, and have no right to put on witnesses or
submit documentary evidence. The magistrate further found that Montgomery's
own exhibits contradicted his allegation that his good time credits were affected
by his disciplinary segregation. Thus, the magistrate and the district court
concluded that Montgomery failed to allege facts that support an arguable legal
claim. We disagree.
First, we note that the precedents relied on by the magistrate and the district
court to hold that the only process Montgomery was due was notice and an
opportunity to be heard involved different factual circumstances than those
presented in the instant case. In particular, Hewitt and McCrae involved
prisoners who were placed in administrative segregation, and not punitive
segregation like Montgomery. It is well established that prisoners do not have a
liberty interest in remaining out of administrative segregation unless an interest
is created by state law, Hewitt, 459 U.S. at 466-69, and this Circuit has held
that Colorado has not created any such right. Templeman, 16 F.3d at 369.
Accordingly, were Montgomery subject to administrative segregation, he would
not allege any liberty interest, and he would not be entitled to any special
procedural rights before being segregated even if such segregation impacted his
good time credits. Moreover, even if Colorado had created a right to be free
from administrative segregation absent certain circumstances, the process due a
prisoner facing such segregation under the federal Constitution would be
minimal and would not include the right to put on witnesses or evidence.
Hewitt, 459 U.S. at 476.
6
However, the present case involves punitive and not administrative segregation,
and thus implicates greater due process concerns. Frazier v. Dubois, 922 F.2d
560, 563 (10th Cir.1990); see also Hewitt, 459 U.S. at 468, 473 (stating that
placing inmates in restrictive quarters for "nonpunitive reasons" is within the
expected terms of a prison sentence, and distinguishing such segregation from
"disciplinary confinement"). The report from Montgomery's disciplinary
hearing specifically states that Montgomery was to be placed in "disciplinary
segregation." Thus, although the line between administrative and punitive
segregation may be murky, Frazier, 922 F.2d at 563, we take Defendants' own
characterization of the segregation at face value and conclude that Montgomery
was being punished for his actions. That punishment involved both the
segregation itself and the alleged extension of Montgomery's sentence from the
loss of good time credits. Because Montgomery was facing punitive sanctions,
he should have received the core due process protections of notice, the right to
be heard, and the right to call witnesses and put on evidence. See Wolff v.
McDonnell, 418 U.S. 539, 566 (1974).
Furthermore, Montgomery's allegations appear supported by the record before
us--let alone sufficiently plausible or unfanciful to satisfy 1915(d)--despite the
magistrate's somewhat summary conclusion that Montgomery's own exhibits
contradicted his allegation that his good time credits were impacted by the
disciplinary sanction he received.3 Specifically, Montgomery identifies a
November 24, 1993 order from the El Paso County Court that specifies that his
projected release date was April 4, 1994 if he maintained his trustee status and
that the court would consider releasing him to spend the last 30 days of his
sentence at the Pueblo Treatment Services Intermediate Residential Treatment
Program. Other records indicate that Montgomery was not in fact released from
the Colorado Justice Center until May 9, 1994. Montgomery will, of course,
have to substantiate his allegations and carry his burden of proof at further
proceedings below after Defendants respond to his complaint.
Nevertheless, we hold that dismissal under 1915(d) was inappropriate and
REVERSE and REMAND for further proceedings in accordance with this
opinion. The Mandate shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
Thus, we also grant Montgomery's motion for leave to file his appeal in forma
pauperis pursuant to 28 U.S.C.1915
Defendants do not dispute that Montgomery was placed in segregation for 30
days
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