decision on two grounds. First, the due process clause does not impose upon prison disciplinary proceedings the burden of proof beyond a reasonable doubt which applies to criminal cases, and the government's failure to meet its burden of persuasion in a criminal case does not bar other non-criminal sanctions. Further, the evidentiary rules are much broader in disciplinary hearings than they are in criminal actions since the exclusionary rules do not apply. Therefore, the district court had erred in ordering the warden to restore to plaintiff the good time which had been forfeited. Bell v. Putnam, 548 F.2d 749 (8th Cir. 1977), cert. denied, 431 U.S. 958, 97 S.Ct. 2684, 53 L.Ed.2d 277 held that the automatic forfeiture of plaintiff's good time when his parole was revoked did not require a separate evidentiary hearing in addition to his parole revocation hearing. e. Prisoner Charged With a Criminal Offense Wolff, supra, did not address the situation when the prisoner is alleged to have engaged in conduct which constitutes a criminal offense under state law. However, in Baxter, supra, the Court reversed the court of appeals holding that where the charges at the disciplinary hearing involve conduct punishable as a crime under state law the prisoner is entitled to representation by counsel. The Court The Court quoted from Wolff that inmates do not "have a right to either retained or appointed counsel in disciplinary hearings." 425 U.S. at 315, 96 S. Ct. at 1556, 47 L. Ed. 2d at 819. Further, the Court held that the prison officials did not act improperly in advising plaintiff that he was not required to testify at his disciplinary hearing and that he could remain silent but that his silence could be used against him. Wycoff v. Brewer, 572 F.2d 1260, 1264 n. 6 (8th Cir. 1978) discussed the policy decision presented to prison officials when an inmate commits an act or a series of acts which may constitute not only a breach of prison discipline, but also a violation of substantive state law. The officials must decide whether they should follow prison disciplinary procedures or leave the matter to local prosecutive officials. In Wycoff the plaintiff had been placed in administrative segregation after he ran amuck, engaged in assaultive conduct and destroyed or damaged state property. He had been placed in administrative segregation pending determination by the county attorney as to whether he should be charged with substantive offenses under state law. He had never been given a hearing with respect to the episode that led up to his initial confinement. It appeared that the county attorney finally decided not to prosecute plaintiff, but may have failed to communicate his decision to prison authorities. Although plaintiff should have been given a hearing soon after his initial confinement in administrative segregation, the court of appeals approved the district court's finding that he was not entitled to money damages. The court noted "that plaintiff would never have been placed in administrative segregation if he had not conducted himself as he did on July 2, 1973." 572 F.2d at 1267. The court did recognize that prison administrators are required to deal with violent and unruly convicts in a constitutional manner and that the contributory fault of an inmate does not necessarily deprive him of his right to relief from deprivations of unccnstitutional dimension. However, the court determined that the defendants were shielded from liability for damages by the qualified executive privilege recognized in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L. Ed. 2d 24 (1978). There was nothing to indicate that any of the defendants had acted toward plaintiff in bad faith or with personal malice and the judgment of the district court was affirmed. The Tentative Draft of Standards Relating to the Legal Status of Prisoners published by the American Bar Association Section of Criminal Justice, recommends that in such cases "the prosecutor, in consultation with the chief executive officer, should promptly determine whether to file criminal charges against the prisoner." 3 American Criminal L. Rev. 453-54 (1977). If charges are brought, all institutional proceedings against the prisoner should be halted. The prisoner "may be confined in his assigned quarter or in a more secure housing unit for no more than ninety days" pending the filing of an indictment or information. If charges are filed, he "may be confined during the pendency of the criminal prosecution. After disposition of the criminal charge he may be reclassified but should not be subjected to further disciplinary proceedings." f. Necessity for Federal Court Hearing In Willis v. Ciccone, 506 F.2d 1011, 1018 (8th Cir. 1974), where the plaintiff claimed that the disciplinary actions taken against him were based on a false report, the court held that Wolff required a determination as to whether procedural due process had been afforded in the disciplinary proceedings. In most cases in which the records of the disciplinary proceedings are available it should not be necessary for the district court to hold an evidentiary hearing. The role of the district court was not to afford a de novo review of the disciplinary board's factual findings, but merely to determine whether the decision was supported by some facts. The district court was not to assume the task of retrying all prison disciplinary disputes. Similarly, in Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L. Ed. 2d 214, 227 (1975), where the issue was whether the defendant school board members had deprived plaintiff students of their right to due process prior to their expulsion from school, the Court stated: But § 1983 does not extend the L.Ed.2d 420 U.S. at 326, 95 S. Ct. at 1003, 43 L. Ed. 2d at 227. Under Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978), prison officials have as much, if not more, discretion than school administrators and school board members. Acquittal of Criminal Charge g. on Disciplinary Action Effect Rusher v. Arnold, 550 F.2d 896, 898 (3d Cir. 1977) held that acquittal of criminal charges does not prevent prison officials from disciplining a prisoner for an infraction of the prison rules, even though the indictment and the prison disciplinary action arose from the same incident. The court concluded that "the inability of the Government to meet its burden of persuasion in criminal cases is no bar to other non-criminal sanctions based upon a less stringent burden [of proof]." 550 F.2d at 899. h. Timing of Disciplinary Hearing, Exigent Circumstances Powell v. Ward, 542 F.2d 101 (2d Cir. 1976) considered the timing of the Wolff hearing. The district judge had ordered that hearings for inmates confined to special housing or segregation pending investigation of charges must be held within seven days of confinement. The order was approved by the court of appeals which added that in unusual or emergency situations the seven day requirement could be extended with the permission of the commissioner of correctional services or his designee. It is noted that Wolff, supra, required that the prisoner be given at least twenty-four hours advance notice of the claimed violation. The court did not address the question of whether the plaintiff could be placed in segregation prior to the hearing. However, in Finney v. Arkansas Board of Corrections, 505 F.2d 194, 207 (8th Cir. 1974), the court held that it was not unreasonable to keep a prisoner in segregation for three days pending disciplinary action. Similarly, in 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), the court observed that its requirement of twenty-four hours formal written notice prior to the hearing 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 to the safety of others. Several courts have recognized that exigent circumstances may justify the temporary suspension of due process hearing procedures. Morris v. Travisono, 509 F.2d 1358 (1st Cir. 1975) recognized that exigent circumstances could justify the temporary suspension of due process hearing procedures prior to disciplinary action. 182 However, due process safeguards must be provided as soon as possible after the emergency has ended. 509 F.2d at 1360. Braxton v. Carlson, 483 F.2d 933 (3d Cir. 1973) held that segregated confinement for three days pending a hearing was not unreasonable under the circumstances. United States ex rel. Arzonica v. Scheipe, 474 F.2d 720 (3d Cir. 1973) preceded Wolff, but the United States Court of Appeals for the Third Circuit, in Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972), had required that prisoners be given notice of charges or a hearing before transfer to solitary confinement. However, the court stated: The rule of reason still prevails; 474 F.2d at 722. In Gray v. Creamer the court stated: "[T]his is not to say, of course, that this notice or hearing must in all cases precede the transfer to solitary confinement; in some cases, as, for example, during a prison riot, notice and hearing must be delayed a reasonable period of time. 465 F.2d at 185 n. 6: The entire prison population had been placed on restricted status following an altercation of disputed character and magnitude in LaBatt v. Twomey, 513 F.2d 641 (7th Cir. 1975). For nine days prisoners were confined to their cells and were subjected to restrictions on exercise, association, and normal vocational and educational activity. The court found that the conditions imposed did subject the prisoners to a "grievous loss, but commented that the due process clause provides an elastic, flexible standard which varies with the attendant circumstances: 182. See also Powell v. Ward, supra. |