Appeal from the United States District Court for the Southern District of Illinois, No. 83-4032 -- Kenneth J. Meyers, Magistrate.
Cummings, Wood and Flaum, Circuit Judges.
In recent years this court has heard a series of cases, arising from the maximum security federal penitentiary at Marion, Illinois, that have required us to consider the scope of due process protections when prison disciplinary proceedings involve confidential informants. See, e.g., McCollum v. Miller, 695 F.2d 1044 (7th Cir. 1982) ("McCollum I"); Jackson v. Carlson, 707 F.2d 943 (7th Cir.), cert. denied sub nom. Yeager v. Wilkinson, 464 U.S. 861, 78 L. Ed. 2d 167, 104 S. Ct. 189 (1983); Dawson v. Smith, 719 F.2d 896 (7th Cir. 1983), cert. denied, 466 U.S. 929, 80 L. Ed. 2d 186, 104 S. Ct. 1714 (1984); Mendoza v. Miller, 779 F.2d 1287 (7th Cir. 1985), cert. denied, 476 U.S. 1142, 106 S. Ct. 2251, 90 L. Ed. 2d 697 (1986); McCollum v. Williford, 793 F.2d 903 (7th Cir. 1986) ("McCollum II"); Sanchez v. Miller, 792 F.2d 694 (7th Cir. 1986). These cases clarify and amplify the minimum due process requirements outlined by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) and Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Petitioner in this case is an inmate at Marion who lost his good time credits when the prison disciplinary committee, relying on confidential informants, found him guilty of killing another inmate. He challenges (1) a finding of informant reliability that did not reach the record until after the adjudication, and (2) the district court's failure to grant his counsel access to the confidential information relied on by the prison authorities, even though his attorney was specifically found to be trustworthy. For reasons explained below, we affirm in part and remand in part for proceedings consistent with this opinion.
On January 12, 1981, Thomas Sargis, an inmate of the United States Penitentiary in Lompoc, California, was found stabbed to death in his cell. Three days later petitioner James E. Wagner, also an inmate at the Lompoc penitentiary, received an incident report, see 28 C.F.R. § 541.13, Table 3 (Code 100 -- Killing), charging him with the killing. The prison Institutional Discipline Committee (IDC) held a hearing on February 4 or 5, 1981,*fn1 at which Wagner was represented by a staff representative. Wagner presented five fellow inmates as witnesses on his behalf and submitted a statement.
The IDC found Wagner guilty of the killing. According to its hearing report, this conclusion rested on three sources: the incident report, the ensuing investigation, and confidential evidence received from three informants that was summarized in a written report from the Federal Bureau of Investigation.*fn2 As a result of this finding of guilt, the IDC revoked Wagner's 176 accumulated "good time" days, placed him in disciplinary segregation for 60 days, and recommended him for placement in the Marion Control Unit. Wagner appealed this finding of guilt through administrative channels.
On May 21, 1981, the IDC chairperson amended the IDC hearing report as follows:
IDC Hearing Amendment of May 21, 1981 (reprinted in Respondent's brief at A12).
Wagner was subsequently transferred from Lompoc to the United States Penitentiary at Marion, Illinois, where he was placed in that institution's control unit. On February 3, 1983, having exhausted his administrative remedies, Wagner filed a habeas corpus petition. The petition charged that the evidence relied on by the IDC was insufficient to sustain its action; that the use of confidential information was a violation of due process; and that the IDC was improperly allowed to amend its determination.
The magistrate examined the FBI report in camera, and petitioner's court-assigned counsel moved for a protective order that would allow him to review the report without revealing the information to petitioner. The court denied the motion, stating that the in camera materials merely detailed the information already provided to petitioner's counsel in the IDC report. The magistrate also noted that although he was confident that petitioner's counsel would have in fact kept the information in the strictest confidence, he "could not reach the same conclusion with regard to all attorneys who might appear before [him]." Wagner v. Williford, No. CV 83-4032 (S.D. Ill. Jan. 4, 1985) (order concerning motion to review in camera materials). On December 4, 1985, the court granted the government's motion for summary judgment.
On appeal Wagner raises two issues. First, Wagner argues that he was denied due process of law when the IDC based its conclusion on evidence from confidential informants, because no determination of the informants' reliability reached the record until after the adjudication. Second, Wagner argues that he was denied due process of law and the effective representation of counsel when the district court denied his attorney access to the confidential report.