373 F.

3d 501

Demarcus M. BROWN, Petitioner-Appellant,

v.
Daniel BRAXTON, Warden, Red Onion State Prison,
Respondent-Appellee.
No. 03-6763.

United States Court of Appeals, Fourth Circuit.

Argued: May 4, 2004.
Decided: July 1, 2004.

ARGUED: Charles E. Luftig, Third Year Law Student, Appellate

Litigation Clinic, University Of Virginia School of Law, Charlottesville,
Virginia, for Appellant. Susan Foster Barr, Assistant Attorney General,
Office of the Attorney General, Richmond, Virginia, for Appellee. ON
BRIEF: Neal L. Walters, Charlottesville, Virginia, for Appellant. Jerry
Walter Kilgore, Attorney General of Virginia, Richmond, Virginia, for
Appellee.
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in
which Judge KING and Judge GREGORY joined.
OPINION
WILKINSON, Circuit Judge:

DeMarcus M. Brown, an inmate incarcerated at Red Onion State Prison in

Pound, Virginia, was found guilty at a prison disciplinary hearing of assaulting
a fellow inmate, Johnnie Lee Beavers. The officer in charge of the hearing
denied Brown's request to call Beavers as a witness, but allowed Brown to
submit Beavers' written statement in lieu of live testimony. Brown claims that
his inability to present Beavers as a live witness denied him due process of law,
but we disagree. Prison officials have the discretion, indeed the duty, to protect
the inmates committed to their care. Among other concerns, prison authorities
justifiably feared reprisal against Beavers in the event that his testimony was

not as Brown hoped, and they were not constitutionally required to expose
Beavers to the threat of a second beating. We therefore affirm the judgment.
I.
2

The State of Virginia classifies its correctional facilities at six different levels.
Level 1 correctional units provide dormitory-style living for minimum-security
inmates convicted of relatively minor offenses. By contrast, Level 5 and 6
prisons house maximum-security inmates convicted of much more serious
offenses. Red Onion State Prison, where Brown and Beavers are incarcerated,
is Virginia's only Level 6 facility. It provides maximum-security celled living
for inmates who have severe behavioral problems; who are serving extremely
long sentences; or who present escape risks.

On September 9, 2000, Beavers had completed his duties as an inmate

recreation worker and was returning to his cell. When Correctional Officer
Samie Fleming opened Beavers' cell door, Brown followed Beavers inside.
Fleming heard slapping and hollering from inside the cell, so he closed the cell
door and reported an emergency on the cell intercom. Lieutenant James
Robinson, Sergeants Gregory Deel and Dwight Moore, and several other
correctional officers responded immediately to Fleming's call. According to
Lieutenant Robinson, he saw Brown and Beavers fighting on the bottom bunk
of the cell. When Brown and Beavers ignored repeated orders to stop fighting,
the officers entered the cell and separated the pair. Both Brown and Beavers
were then examined by the prison's medical staff.

According to Lieutenant Robinson's Incident Report, signed and dated the day
of the fight, the prison nurses who examined Beavers found that his left back
tooth had been chipped during the altercation and his left wrist had been cut.
Beavers also told the nurses, "I was hit with an adapter." As for Brown, he
sustained a bite mark on his right forearm and a few small cuts and abrasions.
Brown was later placed in administrative detention, while Lieutenant Kelly
Chris investigated the altercation.

On September 18, 2000, Brown was served with a copy of Lieutenant Chris's
Disciplinary Offense Report, which stated that Brown was being charged with
aggravated assault. Upon being served, Brown requested that Beavers appear
as a witness on his behalf. Then on September 22, Beavers submitted to prison
officials a written statement that said simply: "At no time did inmate D. Brown
assault me with his adapter or in any other way."

On September 25, 2000, Inmate Hearing Officer Brett Edmonds conducted a

On September 25, 2000, Inmate Hearing Officer Brett Edmonds conducted a

disciplinary hearing on Brown's assault charge. Lieutenant Chris testified about
Fleming's report of the fight, as well as the nurses' report on Beavers' injuries
and Beavers' statement to the nurses that he had been hit with an adapter. Chris
also testified that during his investigation he had interviewed Beavers.
According to Chris, Beavers said that he and Brown had argued prior to the
fight, and that later Brown had run into Beavers' cell and attacked Beavers with
an adapter wrapped in a sock. As Chris had noted in his Disciplinary Offense
Report, an adapter with Brown's name and inmate number was found in
Beavers' cell following the fight. Finally, Chris testified that he had also
interviewed Brown, who said that he was in Beavers' cell with the permission
of Beavers' cellmate to watch television. However, Brown denied making such
statements to Chris (and Beavers' cellmate denied knowing Brown, much less
giving him permission to watch his television).

Edmonds then gave Brown an opportunity to present evidence in his defense.

Brown requested that Beavers be called as a live witness, but Edmonds denied
Brown's request. Edmonds then read Beavers' written statement into the record.
Accordingly, Brown argued that he should not be found guilty of assault since
Beavers himself denied being assaulted in any way. When Edmonds asked
Brown whether he had anything else to present, Brown said no; he presented no
other witnesses or arguments.

Edmonds proceeded to find Brown guilty of aggravated assault, sentencing him

to the loss of 180 days of good conduct time. According to Edmonds' written
findings, (1) Brown had been identified by Officer Fleming as the inmate who
had entered Beavers' cell; (2) Beavers had sustained injuries consistent with
fighting; (3) Beavers had stated to nurses immediately following the fight that
he was attacked with an adapter; (4) Brown's adapter was found in Beavers' cell
after the fight; and (5) when Beavers was subsequently interviewed by
Lieutenant Chris, Beavers confirmed that Brown had assaulted him with an
adapter.

Brown presented a host of claims in a state habeas petition to the Supreme

Court of Virginia. That court dismissed his petition on November 8, 2001.
Brown then reiterated his claims in a habeas petition filed in the United States
District Court for the Western District of Virginia, which also dismissed
Brown's petition on March 19, 2003. We issued a certificate of appealability on
October 24, 2003 to consider whether Brown's right to due process was
violated by Edmonds' refusal to call Beavers as a witness.

II.

10

Brown challenges the constitutionality of Virginia Department of Corrections

Division Operating Procedure ("DOP") 861.14(B)(1). Brown alleges that
Edmonds relied on DOP 861.14(B)(1) in denying his request to call Beavers as
a witness. DOP 861.14(B)(1) provides that in all disciplinary hearings for
certain types of charged offenses

11

[t]he IHO [Inmate Hearing Officer] shall examine each witness' statement for
relevance and repetitiveness. A witness' written statement shall not be used in
lieu of the witness' testimony at a Disciplinary Hearing, except at Level 5 and 6
institutions and segregation units; the statement from an inmate witness is
sufficient. Staff witnesses requested by the inmate should appear at the
Disciplinary Hearing at Level 5 and 6 institutions and in segregation units.

12

DOP 861.14(B)(1) thus regulates the use of witness testimony in disciplinary

hearings, and it draws distinctions based upon the type of institution at which
the accused inmate is housed, the type of witness sought by the accused
inmate, and the type of testimony to be offered by the witness. Specifically,
DOP 861.14(B)(1) allows inmates at all Virginia correctional institutions an
unqualified right to call staff witnesses at disciplinary hearings. However, only
inmates at Level 1, 2, 3 and 4 facilities are guaranteed the right to call willing
fellow inmates as live witnesses. Prisoners at Level 5 and 6 facilities who wish
to present testimony from their fellow inmates may be required to submit
written statements in lieu of live testimony.

A.
13

An analysis of the constitutionality of DOP 861.14(B)(1) must begin with the

Supreme Court's seminal case on the due process rights of prisoners, Wolff v.
McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In Wolff, the
Supreme Court considered how prison disciplinary hearings must be structured
in order to comport with the demands of the Due Process Clause of the
Fourteenth Amendment. The Court was clear that inmates retain rights under
the Due Process Clause, but that their rights are "subject to restrictions imposed
by the nature of the regime to which they have been lawfully committed."
Wolff, 418 U.S. at 556, 94 S.Ct. 2963. Prison disciplinary hearings, unlike
criminal prosecutions or parole revocation hearings, "take place in a closed,
tightly controlled environment peopled by those who have chosen to violate the
criminal law...." Id. at 561, 94 S.Ct. 2963. In many prisons, the inmates can be
dangerous to each other, and they are confined to a setting that is often rife with
tension between inmates, guards, and prison officials. Id. at 561-62, 94 S.Ct.
2963. As the Court recognized, "[i]t is against this background that disciplinary
proceedings must be structured by prison authorities; and it is against this

background that we must make our constitutional judgments...." Id. at 562, 94

S.Ct. 2963.
14

In defining the balance between inmates' due process interests and prison
authorities' penological needs, the Wolff Court drew some firm lines. On the
one hand, inmates are entitled to advance written notice of the claimed
violation, as well as a written statement concerning the evidence relied upon
and the reasons for the disciplinary action taken. Id. at 563, 94 S.Ct. 2963. On
the other hand, inmates are not entitled to confront the witnesses against them,
nor are they guaranteed the right to retained or appointed counsel. Id. at 567-70,
94 S.Ct. 2963; see also Baxter v. Palmigiano, 425 U.S. 308, 315-22, 96 S.Ct.
1551, 47 L.Ed.2d 810 (1976) (discussing limited range of inmate rights in
prison disciplinary proceedings).

15

But with regard to an inmate's right to present evidence in his defense, the
Court took a more nuanced view. An inmate facing disciplinary proceedings
has the qualified right "to call witnesses and present documentary evidence in
his defense when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals." Wolff, 418 U.S. at 566, 94 S.Ct. 2963.
The purpose of the qualification was manifest: "Prison officials must have the
necessary discretion to keep the hearing within reasonable limits and to refuse
to call witnesses that may create a risk of reprisal or undermine authority, as
well as to limit access to other inmates to collect statements or to compile other
documentary evidence." Id. Thus after Wolff, it was clearly established that
prison officials had the discretion to deny witness requests, where legitimate
penological interests justified excluding a witness.

16

Wolff did leave open an important question that has divided the circuits:
whether prison officials had to consider witness requests on a case-by-case
basis, or whether they could formulate regulations designed to deal with such
requests categorically. Compare Ramer v. Kerby, 936 F.2d 1102, 1104 (10th
Cir.1991) (Wolff demands an "individualized determination" whether to grant
an inmate's witness request); King v. Wells, 760 F.2d 89, 93 (6th Cir.1985)
("Wolff requires that officials make an individualized decision on the facts of
each case...."); Dalton v. Hutto, 713 F.2d 75, 78 (4th Cir.1983) (Wolff deems
"per se proscriptions against the calling of certain categories of witnesses"
violative of due process); Bartholomew v. Watson, 665 F.2d 915, 918 (9th
Cir.1982) (Wolff demands "a case-by-case analysis of the potential hazards" of
calling a particular witness), with Whitlock v. Johnson, 153 F.3d 380, 386-87
(7th Cir.1998) (recognizing room for generalized rules that exclude certain
types of witnesses); McGuinness v. Dubois, 75 F.3d 794, 799-800 & n. 7 (1st
Cir.1996) (questioning the case-by-case requirement); Powell v. Coughlin, 953

F.2d 744, 749 (2d Cir.1991) (upholding policy against calling prison mental
health clinicians in inmates' presence).* However, we need not revisit that
debate here, because Wolff establishes beyond doubt all that is necessary to
resolve this case: hearing officers like Edmonds may decide that legitimate
penological interests justify the denial of an individual inmate's witness request,
and their decisions are not to be lightly second-guessed by courts far removed
from the demands of prison administration.
B.
17

The parties dispute whether Inmate Hearing Officer Edmonds applied DOP
861.14(B)(1) as a categorical rule against live testimony by inmate witnesses at
Level 5 and 6 facilities. However, the district court reviewed the tapes of
Brown's disciplinary hearing and found as a factual matter that Edmonds had
individually considered Brown's request. In all events, it is clear that Edmonds
acted under the authority of the regulation in declining to call Beavers in
person. The simple question before us is whether we should defer to his
decision. For at least three reasons, we conclude that we must.

1.
18

Initially, DOP 861.14(B)(1) serves legitimate penological interests. The

regulation is designed above all to prevent inmates from forcefully coercing
testimony out of their fellow prisoners. Simply put, it protects inmates' safety.
"Retaliation is much more than a theoretical possibility" for inmates who are
called as witnesses in disciplinary hearings, Wolff, 418 U.S. at 562, 94 S.Ct.
2963; it is a "very real danger[]," Pontev. Real, 471 U.S. 491, 495, 105 S.Ct.
2192, 85 L.Ed.2d 553 (1985). As the Supreme Court has recognized, prisoners
are "subject to the unwritten code that exhorts inmates not to inform on a fellow
prisoner," and they are vulnerable should they elect to violate that code. Wolff,
418 U.S. at 562, 94 S.Ct. 2963. Certainly inmate witnesses do not always
testify under threat of coercion. Yet the broader concern of reprisal necessitates
protection for inmate witnesses, especially at prisons like Red Onion that are
filled with the State's most hardened criminals. Virginia has rightly sought to
diminish the risk to maximum security inmates' safety by allowing them to
testify in writing.

19

The regulation also attempts to reduce the shuffling of inmates inside

maximum security prisons. Disciplinary hearings have placed a serious
administrative burden on prisons, whose caseloads can require standing
disciplinary boards that convene daily to hear hundreds of cases a week. See,
e.g., Whitlock v. Johnson, 153 F.3d 380, 389 (7th Cir.1998). In this context, it is

truer than ever that "the unrestricted right to call witnesses from the prison
population carries obvious potential for disruption and for interference with the
swift punishment that in individual cases may be essential to carrying out the
correctional program of the institution." Wolff, 418 U.S. at 566, 94 S.Ct. 2963.
Again, DOP 861.14(B)(1) quite reasonably attempts to minimize the substantial
disruption and administrative burden that would flow from an unrestricted right
to live witness testimony.
2.
20

Secondly, the State has tailored its regulation to meet its penological concerns.
The twin dangers of retaliation and disruption are present to some degree
whenever inmates are allowed to call their fellow prisoners as witnesses in
disciplinary proceedings. Yet the Virginia Department of Corrections has not
sought to limit live testimony from all kinds of witnesses, nor has it sought even
to limit live testimony from inmate witnesses at all kinds of facilities.

21

Rather, the State has simply vested prison officials like Edmonds with the
discretion to decide whether some relatively few inmates those inmates held
at maximum security facilities should testify in person or in writing. For
while both oral and written testimony present some danger of retaliation and
disruption, the face-to-face, confrontational nature of oral testimony creates
more serious difficulties for prison officials. In sum, the State has tailored its
regulation to meet its most pressing needs by placing limits on the live
testimony of its most dangerous inmates those inmates who pose the
severest threat to personal and institutional safety. The bounds that prison
authorities have placed on live witness testimony thus represent a sensible
"mutual accommodation between institutional needs and objectives and the
provisions of the Constitution...." Wolff, 418 U.S. at 556, 94 S.Ct. 2963.

22

Indeed, it is the moderateness of Virginia's regulation that sets it apart from

other witness request policies. For example, in Dalton v. Hutto, 713 F.2d 75,
77-78 (4th Cir.1983), this court invalidated a Virginia prison guideline in
fact, a less artfully crafted predecessor to DOP 861.14(B)(1) that denied all
inmates the right to call any witness who would not appear voluntarily.
Pursuant to Guideline No. 861, two corrections officers had refused to testify at
prisoner James Dalton's disciplinary hearing as Dalton had requested. Dalton,
713 F.2d at 76. The court concluded that for an inmate's due process right to be
meaningful, prison officials could not stand idly by while any witness refused
to testify for any reason or even no reason at all. Id. at 78.

23

However, the differences between DOP 861.14(B)(1) and the guideline at issue

in Dalton are stark. Unlike DOP 861.14(B)(1), Guideline No. 861 made no
provision for the submission of written statements in lieu of live testimony.
Thus Dalton and the prison tribunal were wholly without the benefit of Dalton's
desired testimony. See id. at 77. Guideline No. 861 also made no attempt to
distinguish between inmate, staff, and outside witnesses. In fact, in Dalton it
was two corrections officers who were refusing to testify witnesses who
would be compelled to testify under DOP 861.14(B)(1), which accords inmates
at all Virginia correctional institutions an unqualified right to call staff
witnesses at disciplinary hearings.
24

In short, Dalton's right to call witnesses was essentially eviscerated, which

Wolff does not permit; but Brown's right to call witnesses was instead qualified,
which Wolff expressly sanctions. The distinction is crucial, because the
majority of regulations invalidated by our sister circuits have been absolute
prohibitions on the calling of witnesses or certain categories of witnesses.
Those regulations have applied system-wide to all disciplinary hearings, and
they have resulted in the loss of testimony altogether. See, e.g., Whitlock v.
Johnson, 153 F.3d 380, 388 (7th Cir.1998) (invalidating "policy of denying
virtually all requests for live witnesses"); Mitchell v. Dupnik, 75 F.3d 517, 525
(9th Cir.1996) (invalidating "a blanket policy of prohibiting inmates from
calling any witnesses under any circumstances to testify at disciplinary
hearings"); Forbes v. Trigg, 976 F.2d 308, 318 (7th Cir.1992) (invalidating
policy that allowed inmates and staff members to refuse to testify at
disciplinary hearings); King v. Wells, 760 F.2d 89, 93 (6th Cir.1985)
(invalidating prison's "policy of not permitting witness testimony under any
circumstances").

25

Virginia's policy suffers no similar infirmity. In truth, it is difficult to imagine

how Virginia could draft a narrower regulation: DOP 861.14(B)(1) permits
prison officials to limit only a type of testimony (live testimony) from a type of
witness (an inmate witness) at a type of facility (a Level 5 or 6 prison). If any
regulation dealing with witness requests at prison disciplinary hearings is to
survive constitutional scrutiny and Ponte suggests some do surely it is
this one. Invalidating DOP 861.14(B)(1) would preclude virtually any policy
that dealt with inmates' witness requests, encasing disciplinary proceedings in
the sort of "inflexible constitutional straitjacket" that the Supreme Court has
condemned. Wolff, 418 U.S. at 563, 94 S.Ct. 2963. It makes sense to treat
inmate witnesses differently from other types of witnesses, and maximum
security inmate witnesses differently still.

3.

26

Thirdly, the reasonableness of Virginia's regulation could hardly be clearer than

in its application to the present case. Numerous officers witnessed the fight
between Brown and Beavers; both were treated for their injuries; physical
evidence at the scene substantiated the officers' account; and Beavers himself
initially said that he had been attacked by Brown. Why then would Beavers
change his story? As the district court found, Edmonds believed that Beavers
feared what would happen to him in the event that he did not recant. After all,
Beavers had already been assaulted once. Had he informed on Brown, either in
his written statement or in live testimony at the hearing, it was not difficult for
him to imagine how Brown would repay his forthrightness. Granted, Beavers
may well have altered his testimony for reasons other than the risk of
retaliation, but that makes it no less reasonable for Edmonds to have taken the
risk seriously. If Wolff and Ponte teach anything, it is that the dictates of due
process do not require prison officials to turn a blind eye to the stubborn
realities of prison life.

27

Moreover, Brown made no attempt at his disciplinary hearing to explain the

value of calling Beavers as a live witness. Beavers' single sentence "At no
time did inmate D. Brown assault me with his adapter or in any other way"
was the sum and substance of his testimony. This was not a complicated
disciplinary hearing: either Brown had assaulted Beavers, or he had not.
Edmonds read Beavers' statement into the record at the hearing and was well
aware that Beavers denied the assault, just as he was well aware of the ample
evidence that Beavers' statement was a post hoc falsification.

28

While Brown asserts that Beavers would have testified at greater length than
his brief, one-sentence written statement, Brown never specifies what else
Beavers would have said. Thus even if Edmonds somehow erred in not calling
Beavers as a live witness, Brown has not demonstrated that he was harmed by
Beavers' testifying in writing rather than in person. See, e.g., Piggie v. Cotton,
344 F.3d 674, 678 (7th Cir.2003) (holding potential due process violation
harmless where accused inmate could not explain how witness' live testimony
would have helped him); McGuinness v. Dubois, 75 F.3d 794, 800 (1st
Cir.1996) (holding lack of live testimony harmless where inmate was able to
present defense, supported by witness affidavits); Powell v. Coughlin, 953 F.2d
744, 751 (2d Cir.1991) (holding denial of inmate's witness request for her
psychiatrist harmless, in part because psychiatrist's notes were admitted
instead).

29

In fact, as the district court noted, Brown was likely helped not harmed
by Beavers' absence. Had Beavers testified in person, he would have had to

explain his statement to nurses, "I was hit with an adapter," as well as his
similar statement to Lieutenant Chris that he had been assaulted by Brown.
Surely Beavers would have been asked to account for the flat contradictions in
his earlier oral statements and his subsequent written testimony. And then
Beavers would have been placed squarely on the hot seat that Edmonds was
attempting to avoid: Beavers could have struggled to explain how he was
injured in a fight that never occurred, or he could have informed on Brown and
tempted whatever fate befalls jailhouse snitches. No matter Beavers' choice, his
testimony could not possibly have added anything to Brown's defense.
III.
30

As if Brown's task were not sufficiently Sisyphean, he asks that we gainsay

Edmonds' decision within the context of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Under AEDPA, we may grant
Brown habeas corpus relief only if the Supreme Court of Virginia's dismissal of
Brown's petition was "contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. 2254(d)(1) (2000). Yet the Supreme Court's case
law in this area dictates precisely the opposite result from that urged by Brown.

31

Again and again, the Supreme Court has cautioned that we should be hesitant to
substitute our judgments for those of prison administrators. See Sandin v.
Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) ("
[F]ederal courts ought to afford appropriate deference and flexibility to state
officials trying to manage a volatile environment."); Ponte, 471 U.S. at 499,
105 S.Ct. 2192 ("Given [Wolff's] significant limitations on an inmate's right to
call witnesses, and given our further observation in Wolff that `[w]e should not
be too ready to exercise oversight and put aside the judgment of prison
administrators,' it may be that a constitutional challenge to a disciplinary
hearing ... will rarely, if ever, be successful.") (citation omitted); Jones v. North
Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 126, 97 S.Ct. 2532, 53
L.Ed.2d 629 (1977) ("Because the realities of running a penal institution are
complex and difficult, we have also recognized the wide-ranging deference to
be accorded the decisions of prison administrators."); Wolff, 418 U.S. at 56667, 94 S.Ct. 2963 ("[Prison officials] must have the necessary discretion [to
limit the calling of witnesses] without being subject to unduly crippling
constitutional impediments."). Here, Inmate Hearing Officer Edmonds
considered the merits of Brown's witness request, but concluded that legitimate
penological interests warranted denying the request. Perhaps chief among those
interests, Edmonds acted to protect one of the inmates whose safety was
entrusted to his care. We cannot say that his effort ran afoul of the constraints

of due process. The judgment of the district court is therefore

32

AFFIRMED.

Notes:
*

InPonte v. Real, 471 U.S. 491, 496, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985), the
Supreme Court intimated that broader policies designed to deal with witness
requests might be constitutionally permissible. Accordingly, in Ponte's wake,
there has been a growing recognition that prisons may develop witness request
policies for sensible reasons. See, e.g., Whitlock, 153 F.3d at 387 (explaining
how Ponte "allow[ed] for the possibility that some [blanket] policies, if
sensitively designed and administered, could be constitutional"); Powell, 953
F.2d at 749 (same). In view of the grounds for our decision here, we need not
address the continuing viability of our decision in Dalton in the face of Ponte
and its progeny.