A convicted murderer has lost his $1 million prisoner rights case as a Nebraska judge ruled there was insufficient evidence he was disciplined in retaliation for telling an investigator about his sexual relationship with a prison employee.

Recent appeals court decisions have made retaliatory discipline claims almost impossible for inmates to win -- and after two days of testimony, U.S. Magistrate Judge David L. Piester granted a defense judgment in Jack Harris's case rather than let it go to a jury.

Nebraska prison rules prohibit inmates from engaging in “sexual activities,” but Harris testified that Darcy Oliver, a former case worker at the Nebraska State Penitentiary, forced him into their four-month relationship. “I did everything she told me to do,” he said.

Harris sued Doug Diltz, who was then captain of the prison’s intelligence unit, for writing him up for misconduct after interviewing both him and Oliver. The misconduct report resulted in Harris being placed in disciplinary segregation, though an appeals board later found insufficient evidence that he “voluntarily violated” the prohibition on sex.

“[H]e was attempting to report a crime, he was attempting to talk with Mr. Diltz about reporting the crime, and he was then disciplined,” Harris attorney Jessica L. Milburn argued. It is a felony in Nebraska for a correctional officer to have sex with an inmate.

But prison officials can defend retaliation cases by merely showing “some evidence” the inmate actually committed a rule violation. The 8th U.S. Circuit Court of Appeals made things even easier for defendants by ruling in January that

a report from a correctional officer, even if disputed by the inmate and supported by no other evidence, legally suffices as “some evidence” upon which to base a prison disciplinary violation, if the violation is found by an impartial decisionmaker. Hartsfield v. Nichols, 511 F.3d 826.

Applying that precedent, Judge Piester noted that Diltz had before him a statement by Oliver in which she alleged that Harris had threatened her.

“'Some evidence,'” he concluded from the bench, “was before Captain Diltz at the time he wrote this misconduct report ... I think the defendant was required to file it, he did file it and the fact that there was later a reversal of it [by the appeals board] is of no moment as to whether it was retaliatory at the time it was written.”

In Hartsfield, the 8th Circuit rejected the argument that allowing the uncorroborated allegations of a correctional officer to satisfy the “some evidence” standard would preclude any inmate from ever bringing a retaliation claim.

Correctional facilities must provide an inmate with “an impartial due process hearing on a disciplinary matter,” the court reasoned, and if that hearing produced “a favorable result” for the inmate, “the inmate would not be precluded from maintaining suit.”

But an “impartial decisionmaker” -- the appeals board -– found no violation of prison rules by Harris. That “favorable result” should at least have been enough to get Harris's retaliation claim before the jury –- rather than being blithely dismissed as of “no moment.”

The evidence at trial included amorous missives from Harris to Oliver in which, among other things, he said, “I never knew I could love a woman like I love you.” But he insisted the letters were part of a ruse to keep Oliver from reporting their sexual contact and getting him sent to “the hole.”

"I entertained the woman,” he testified. “If I didn't, I felt like I could get repercussions from the woman. So I entertained her."

 

By Matthew Heller
10/20/08