Wilson v. Prasse, 404 F.2d 1380 (3d Cir. 1968) stated: Insofar as appellant complains of alleged denial of his right of access to the courts, the record shows that the many civil actions instituted by appellant in the federal and state courts supported the conclusion of the District Court that the contention that appellant had been denied access to the courts was frivolous. 404 F.2d at 1381. The district court in Douglas v. Muncy, 570 F.2d 499 (4th Cir. 1978) had awarded plaintiff money damages against the defendants for depriving plaintiff of his rights to legal assistance and access to the courts. The court of appeals reversed and remanded: We are further of the opinion, 570 F.2d at 501. Prisoners' right of access to courts was considered in another context in Rush v. United States, 559 F.2d 455 (7th Cir. 1977). The petitioners, federal prisoners, sought a transcript of their trial proceedings for purposes of a collateral attack on their convictions which had been affirmed on appeal. The court stated: "future requests for the preexisting record in the underlying criminal proceeding should be granted as of right by the district courts to prisoners seeking to use the record to prepare collateral attacks on their conviction. 559 F.2d at 459-60. 4. Disciplinary Hearings and Procedures For due process purposes the Supreme Court draws an important distinction between disciplinary procedures which are required for major misconduct and those procedures which are required to impose lesser penalties, such as the loss of privileges. Wolff v. McDonnell, 418 U.S. 539, 572 n. 19, 94 S. Ct. 2977, 2982 n. 19, 41 L. Ed. 2d 950, 960 n. 19 (1976); Baxter v. Palmigiano, 425 U.S. 308, 323, 96 S.Ct. 1551, 1560, 47 L. Ed. 2d 810, 824 (1976). a. Nature of Hearing for Major Misconduct The two Supreme Court decisions which defined the due process procedures required in disciplinary proceedings for major misconduct are Wolff, supra, and Baxter, supra. Wolff held that prisoners could not be punished for serious misbehavior without first being granted a due process disciplinary hearing. Before setting forth the minimum requirements for a hearing, the Court noted that "[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." 418 U.S. at 560, 94 S. Ct. at 2977, 41 L. Ed. 2d at 953. The Court distinguished prison disciplinary hearings from parole revocation proceedings: Prison disciplinary proceedings, on the other hand, take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing So.. Guards and inmates coexist in despair are commonplace. Relation- 418 U.S. at 561-62, 94 S. Ct. at 2977, 41 L. Ed. 2d at 954. The Court noted that it was necessary to structure disciplinary proceedings against this background. Since disciplinary hearings "involve confrontations between inmates and authority and between inmates who are being disciplined and those who have charged or furnished evidence against them, retaliation is much more than a theoretical possibility; and the basic and unavoidable task of providing reasonable personal safety for guards and inmates could be at stake." 418 U.S. at 562, 94 S. Ct. at 2978, 41 L. Ed. 2d at 954. Another consideration is the likelihood of confrontations at hearings, escalating personal antagonisms and adversely affecting the correctional process. The Court noted that some prisoners may be incorrigible and would merely disrupt and exploit the disciplinary process for their own ends. 418 U.S. at 563, 94 S. Ct. at 2978, 41 L. Ed. 2d at 955. The Court concluded that when charged with a major misconduct174 a prisoner is entitled to advance175 174. McKinnon v. Patterson, 568 F.2d 930 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L. Ed. 2d 792 (1978), held that two weeks keep lock in which "the prisoner is confined to his own cell and is deprived of almost all contact with the rest of the prison population and participation in the normal routine of the institution," is a substantial deprivation requiring a prior hearing with minimal due process safeguards. 568 F.2d at 936. 175. At least twenty-four hours formal written notice was required prior to disciplinary hearings which could result in punishment of up to two weeks in keeplock in McKinnon, note 174, supra. However, in note 10, the court observed that this requirement would not prevent prison authorities from confining an inmate prior to the hearing where his continued presence in the general population posed a threat to his own safety or the safety of others. 568 F.2d at 939 n. 10. See also Section VIII,K,4,h, Timing of Disciplinary Hearing. written notice of the claimed violation, 176 a written statement of the fact finders as to the evidence relied upon, and the reasons for the disciplinary action taken.177 An inmate who faces disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense unless this would be unduly hazardous to institutional safety or correctional goals. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and refuse to call any witnesses who might creat a risk of reprisal or undermine authority, as well as limiting access to other inmates for purposes of collecting statements and compiling other documentary evidence. 418 U.S. at 566, 94 S. Ct. at 2980, 41 L. Ed. 2d at 957. 176. The plaintiff was awarded $193 in damages for the defendant's failure to give him advance written notice of the charge brought against him in a prison disciplinary proceeding in Ware v. Heyne, 575 F.2d 593 (7th Cir. 1978). 178 177. The statement of reasons was found inadequate in Hayes v. Walker, 555 F.2d 625, 631 (7th Cir. 1977), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1978). 178. In Hayes v. Walker, 555 F.2d 625 (7th Cir. 1977), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1978), the court held that where an accused inmate faces a severe credibility problem when trying to disprove the charges of a prison guard, some support for the denial of witnesses must appear in the record. The court must make a limited inquiry into whether the broad discretion of the prison officials has been arbitrarily exercised. In that case the reason given for refusing plaintiff's request for witnesses was "the residents requested would be placed in highly compromising positions with regards to possible retribution from other residents and to call resident witnesses could prove hazardous to both witnesses and institutional security." 555 F.2d at 628-29. The court stated: If we were to allow broad unsupported findings as were offered in the present case to support the Institutional Adjustment Committee's decision, a prisoner's limited right to call witnesses could be arbitrarily denied in any case and thereby be rendered meaningless. The court would be unable to exercise even limited review of such broad findings. Thus, if a proposed witness is not to be called, support for that decision and not just a broad conclusion should be Confrontation and cross-examination are generally not required. The Court declined to hold that prisoners have the right to either retained or appointed counsel, although an illiterate inmate should be free to seek the aid of a fellow inmate or help from the staff. 418 U.S. at 570, 94 S. Ct. at 2982, 41 L. Ed. 2d at 959. The Court found that the adjustment committee which conducted the required hearings at the Nebraska prison complex was sufficiently impartial to satisfy the due process clause. 179 418 U.S. at 571, 94 S.Ct. at 2982, 41 L.Ed.2d at 959. The Court indicated that its decision would not be retroactive. reflected in the record. Prison officials should look at each proposed witness and determine whether or not he should be allowed to testify. 555 F.2d at 630. The plaintiff had originally submitted a list of fifty-four prisoners to be called as witnesses. At the hearing he asked that ten be called as witnesses and that the others be reviewed by the Institutional Adjustment Committee. 179. Powell v. Ward, 542 F.2d 101, 103 (2d Cir. 1976), concluded that prison officials responsible for maintaining security were not disqualified from adjudicating allegations of breaches of prison security. Defendant had not challenged the district court's order that no person who had participated in the investigation of the acts complained of or who had been a witness to such acts could be a member of the hearing body. Winfrey v. Brewer, 570 F.2d 761 (8th Cir. 1978), held that the district court had improperly dismissed plaintiffs' complaint challenging the impartiality of their hearing committee. The two prison officials who investigated the charges against plaintiffs were members of the hearing committee which found them guilty and imposed punishment. After plaintiffs filed suit another hearing was conducted without the participation of the two investigators. Defendants' motion to dismiss asserted that the second hearing cured any defects in the first hearing. Plaintiffs responded with a claim that the second hearing was a sham. The sentences imposed at the first hearing had been reaffirmed. Meyers v. Alldredge, 492 F.2d 296 (3d Cir. 1974) stated: [w]e emphasize that the requirement of an impartial tribunal prohibits only those officials who have a direct personal or otherwise substantial involvement, such as major participation in a judgmental or decision-making role, |