equal protection, double jeopardy, and cruel and unusual
Plaintiff's motion alleges the following sequence of events. On
March 30, 1972, plaintiff was summoned before the disciplinary
committee and gave his account of an incident involving himself
and defendant Dunn. At plaintiff's request, two officers were
summoned and gave testimony. When plaintiff was subsequently
called by the committee, two other officers, including Dunn, were
not present, though he had asked for them to be summoned. At a
later meeting of the committee, plaintiff was given a copy of a
disciplinary report written by defendant Himminghoefer. His
request that all witnesses, including inmates, be called was
agreed to after an argument. At a later meeting, the two officers
not present at the second meeting appeared. After the two
officers testified, plaintiff was found guilty and sentenced to
fifteen days in isolation and referred to the Merit Staff for
consideration of further penalties. The Merit Staff recommended
that plaintiff be demoted to "C" grade and that three months of
good time be revoked.
Even according plaintiff's pleading the most liberal reading,
it is clear that he cannot show that he was deprived of due
process by the disciplinary proceedings. The gist of the due
process claim is that plaintiff was denied the right to call
witnesses in his behalf and to confront and cross-examine adverse
witnesses. Plaintiff's motion admits that all witnesses which he
called appeared before the disciplinary committee at some point.
The only issue remaining is whether plaintiff should have been
allowed to confront and cross-examine his accusers. Even assuming
that he requested and was denied these rights (see Simmons v.
Russell, 352 F. Supp. 572, 578 (M.D.Pa. 1972)), this Court
concludes that due process did not require them to be afforded.
This decision has been reached with the knowledge that certain
other courts have reached the opposite conclusion.*fn1 This
Court is not alone, however, in its belief that confrontation and
cross-examination are not required in this situation.*fn2
Defendants cite Adams v. Pate, 445 F.2d 105, 108 (7th Cir. 1971),
in support of their argument that the procedure used here
comports with due process, and the Court notes that two decisions
have read Adams to say this. Lathrop, supra note 2; United
States ex rel. Miller v. Pate, 333 F. Supp. 1352, 1353-54
(N.D.Ill. 1971). Even if Adams is not direct precedent, as was
held in Krause, supra note 1, this Court believes that the
Seventh Circuit has shown, by its reliance on McGinnis, supra
note 2*fn3, that it would hold that confrontation and
cross-examination are not required under the circumstances
alleged if it were faced with the issue.
However, aside from the apparent position of the Seventh
Circuit, this Court is of the view that something less than all
of the procedural safeguards set forth in Goldberg v. Kelly,
397 U.S. 254, 267-271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), may be
sufficient in matters such as plaintiff's disciplinary
proceedings. See Morrissey v. Brewer, 408 U.S. 471, 487, 92 S.Ct.
2593, 33 L.Ed.2d 484 (1972); Graham v. Knutzen, 351 F. Supp. 642,
666 (D.Neb. 1972). Balancing plaintiff's interest in
confrontation and cross-examination against the prison's interest
in a summary procedure and protection of its staff from
reprisals, the Court concludes that the procedural benefits
sought by plaintiff were not required.
Accordingly, plaintiff's due process claim is hereby dismissed.
Defendants shall answer or otherwise plead to the remaining
claims within thirty (30) days from the date of this opinion.
It is so ordered.