Larry Junior WARD, Appellant, v. Gene M. JOHNSON, Warden, Sgt. Gardner, Chairman of Adjustment Committee, Appellees, 667 F.2d 1126

WINTER, Chief Judge: Plaintiff, a prisoner convicted under state law and incarcerated in a state penal institution, sued Gene M. Johnson, the warden of the institution in which plaintiff was confined, and H. T. Gardner, the chairman of the institution’s disciplinary committee which sentenced plaintiff to a loss of eight recreation periods for his alleged interference with prison guards’ efforts to quell a fight between two other prisoners. After the plaintiff served this punishment, the disciplinary conviction was stricken from his record.

The suit was brought under 42 U.S.C. § 1983 and the only relief prayed for was the recovery of money damages. The issue we must decide is the extent of a prisoner’s right, if any, to call witnesses at a prison disciplinary hearing. Plaintiff sought to produce the testimony of three inmates in his defense, but he was denied the right to call them. He contends that he was thus denied procedural due process. The district court gave judgment for defendants on the ground that the loss of recreational time was too insignificant to constitute a claim of constitutional magnitude.

We reverse as to defendant Gardner and remand for an award of nominal damages. As to defendant Johnson, we affirm. I. On December 15, 1977, plaintiff had completed a recreational period in the recreation yard of the Mecklenburg Correctional Center. After he was placed in handcuffs and restraints and directed to go indoors, inmate Ronald Graham attacked several inmates with a radio antenna, employing it like a knife. Plaintiff kicked Graham but it is disputed whether this was done in self-defense or whether Graham had already been subdued so that the kick was an unprovoked assault by plaintiff.

In any event plaintiff was pushed by the guards up the stairs to the interior of the institution and taken to his cell.

As a result of the incident, plaintiff was charged with “Delaying Hinderling [sic] or interfering with an employee in performance of his duties,” and the description of the offense given was that the plaintiff was observed “resisting and wrestling . . . [with two prison officers] as they were attempting to break up a fight ... on the recreation yard.” The offense charged was a Category B offense which carried a maximum penalty of loss of good conduct time up to thirty days, or isolation from one to fifteen days, or both. Virginia Department of Corrections Guideline No. 861(IV)(

A) and (B). A hearing on the charge before the disciplinary committee was conducted four days later. Plaintiff appeared, not represented by counsel but assisted by an inmate advisor, and testified that he had not been wrestling with prison officials, but instead had been trying to maintain his balance while being pushed upstairs. The charging officer testified at the hearing and stated that plaintiff’s interference with the guards’ efforts to subdue Graham consisted of plaintiff’s kicking Graham.

As to the alleged wrestling, the officer conceded that plaintiff may have been trying to keep his balance, but he claimed that he had seen plaintiff kick Graham and this led him to infer that plaintiff was wrestling with the officers rather than merely maintaining plaintiff’s balance. In closing the hearing, defendant Gardner, who was the presiding officer, read the written statements of three inmate witnesses into the record.

They were to the effect that plaintiff was only trying to protect himself from Graham and trying to prevent Graham from stabbing another inmate, and that plaintiff did nothing to hinder or interfere with the officers. Indeed one statement suggested that the officers mistook plaintiff for Graham when the officers jumped him and roughly pushed him up the stairs. These statements, of course, had been prepared before the hearing and they did not directly respond to the charging officer’s testimony that plaintiff had kicked Graham without provocation.

When plaintiff sought the production of these three inmate witnesses to give live testimony, his motion was denied on the ground that any testimony from them would be cumulative and would not make any difference in the decision to be reached. Plaintiff was found guilty and deprived of recreation for ten days (eight recreational periods). He took an administrative appeal to defendant Johnson and the charges against him were ultimately dismissed. Dismissal was not granted, however, until after the punishment had been served. This suit ensued. II. In Wolff v.

McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court defined the procedural due process rights of prisoners with regard to prison disciplinary proceedings. Under consideration in Wolff was Nebraska’s disciplinary regime which could result in loss of good time as well as disciplinary confinement (“solitary” confinement).

Included in the general consideration was a discussion of a prisoner’s right to call witnesses, and the rule established was that “the inmate facing disciplinary proceedings should be allowed 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.” At the same time, the Court said that it was not suggesting that the procedures prescribed “would also be required for the imposition of lesser penalties such as the loss of privileges.” 418 U.S. at 571 n.19, 94 S.Ct. at 2982 n.19.

Wolff’s discussion of a prisoner’s right to call witnesses was quoted and cited with approval in Baxter v. Palmigiano, 425 U.S. 308, 320-21, 96 S.Ct. 1551, 1559, 47 L.Ed.2d 810 (1976), where the right to call witnesses was contrasted with the rights of confrontation and cross-examination.

In Baxter, lest there be doubt as to the basis of the holding in Wolff, it was stated that “[t]he right to call witnesses, like other due process rights delineated in Wolff, is thus circumscribed” by the necessity of a mutual accommodation between the rights of the individual and the needs and objectives of the institution. 425 U.S. at 321, 96 S.Ct. at 1559 (emphasis supplied). The right has been recognized in Virginia. Virginia’s Department of Corrections Guideline No. 861(VI)(D)(3)(

c) states that an inmate charged with an infraction meriting punishment has the right to “present the voluntary testimony of witnesses, either inmates, correctional personnel or others, in his/her own behalf ...” (emphasis in original). The guidelines limit the right to present live testimony to that which is relevant and that which is not repetitious. See No. 861 (VI)( H)(2)(b)(ii).

Based upon Wolff and Baxter, we are of the view that a prisoner faced with disciplinary proceedings resulting in a loss of good time or disciplinary confinement has a constitutional right to call witnesses in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. We recognize that there is contrary authority in this circuit. See Pollard v. Baskerville, 481 F.Supp. 1157 (E.D.Va.1979), aff’d, 620 F.2d 294 (4 Cir. 1980) (table). At the same time there is also a decision in accord with our conclusion. See Bratten v.

Smith, 649 F.2d 862 (4 Cir. 1981) (unpublished). But our decision in neither Pollard nor Bratten is binding authority, see Fourth Circuit Local Rule 18(d)(

i) and (ii), and we are persuaded that the district court opinion in Pollard is in conflict with what was said in Wolff and Baxter. In the instant case there is a subsidiary question whether the rule of Wolff applies, because plaintiff suffered a loss of only eight recreational periods — a loss of privileges — and not the loss of good time or a stint in solitary confinement.

The answer depends upon whether the applicability of the Wolff rule depends upon the punishment actually imposed or upon that which might have been imposed, because plaintiff was exposed to a maximum penalty of loss of some good time and a limited period of solitary confinement.

The Supreme Court stated in Baxter that it would not consider whether minimal procedural due process was required when a prisoner was deprived only of privileges, because the prisoners who were plaintiffs in that case “were brought before prison disciplinary hearings for allegations of the type of ‘serious misconduct’ . . . that we held in Wolff to trigger procedures therein outlined.” 425 U.S. at 323, 96 S.Ct. at 1560. This seems to indicate that the test is the severity of the potential punishment and not the actual punishment.

The two courts of appeals which have considered the question have both come to that conclusion. See Gates v. Collier, 501 F.2d 1291 (5 Cir. 1974); Ware v. Heyne, 575 F.2d 593 (7 Cir. 1978). We agree with those holdings. III. Having decided that plaintiff had a qualified procedural due process right to call witnesses in his defense at his disciplinary hearing, we turn to the question of whether that right was denied and, if so, the relief to which plaintiff is entitled. The precise basis for the denial of plaintiff’s request to present the testimony of inmate witnesses is murky.

The imperfect transcript of the disciplinary hearing reflects that the witnesses were not heard because they were “accumulative [sic].” In response to an interrogatory asking why the witnesses were not called, defendant Gardner answered “I don’t recall.” At trial Gardner testified that the witnesses were not called because their testimony was irrelevant. Although the district court did not make a finding as to why Gardner refused plaintiff’s request, there is nothing in the record other than the suggestion that the testimony was cumulative and perhaps irrelevant to justify the refusal.

Specifically, there is no evidence that the presence of the witnesses would have presented any unresolvable problem of security or that their presence would have disrupted or posed any undue burden upon the workings of the institution. Indeed, the Virginia Department of Corrections Guideline purportedly gives a right to procure witnesses qualified only by the relevancy of their testimony and the fact that it is not cumulative. On this record we can only conclude that defendant Gardner improperly denied plaintiff his right to call witnesses.

At the disciplinary hearing, the theory of plaintiff’s interference with the efforts of the prison guards to subdue Graham, i.e. that plaintiff kicked Graham, was one that could not have been anticipated from the formal charge and the description of the offense. The statements of the three inmate witnesses were prepared before this novel theory was advanced; and while they indicated generally that plaintiff was seeking to defend himself and to prevent the stabbing of another inmate, they shed little light on whether plaintiff kicked Graham in self-defense or without provocation.

Thus it cannot be said that testimony from these inmates would be irrelevant or repetitious. It follows that defendant Gardner denied plaintiff his right to procedural due process of law. The record does not even faintly suggest, however, that defendant Johnson played any actual

part in this denial. Since he cannot be held liable under § 1983 under the theory of respondeat superior, he must be exonerated. Monell v. Department of Social Services, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978); Vinnedge v. Gibbs, 550 F.2d 926, 928-29 (4 Cir. 1977). IV. There remains only the question of the damages which plaintiff is entitled to recover from defendant Gardner. In the district court plaintiff was unable to show any special injury that he had sustained. His only loss was eight recreation periods.

Under the circumstances, we think that he is entitled to recover no more than nominal damages for the violation of his right to procedural due process of law. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Burt v. Abel, 585 F.2d 613 (4 Cir. 1978). Accordingly we direct the district court on remand to enter judgment for plaintiff against defendant Gardner in the sum of $1.00. AFFIRMED IN PART; REVERSED IN PART AND REMANDED. . The district court also decided other issues adversely to plaintiff which are not questioned on appeal.

These included plaintiff’s claim that he was denied access to the courts and his claim that the warden intentionally delayed decision on his administrative appeal so that he actually lost his recreational periods before the charges against him were dismissed. Because the correctness of these rulings of the district court is not questioned before us, we do not consider them. . The entire passage from which the quotation in the text is drawn should be considered for the elaboration on the general principle which it contains.

It follows: We are also of the opinion that the inmate facing disciplinary proceedings should be allowed 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. Ordinarily, the right to present evidence is basic to a fair hearing; but 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.

We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate’s interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required.

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. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases.

Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case. The operation of a correctional institution is at best an extraordinarily difficult undertaking. Many prison officials, on the spot and with the responsibility for the safety of inmates and staff, are reluctant to extend the unqualified right to call witnesses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitutional impediments.

There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents. 418 U.S. at 566-67, 94 S.Ct. at 2979-80. . In the light of our discussion of this case, we find it unnecessary to consider plaintiff’s contention that the failure to follow this guideline gives rise to a cause of action cognizable under 42 U.S.C. § 1983. . Our dissenting colleague would decide the case on the ground that defendant Gardner acted in the capacity of an administrative law judge and therefore is totally immune from damages.

We think that this is an inappropriate case in which to consider whether the hearing officer who presides at a disciplinary committee hearing is clothed with any judicial immunity. Although Gardner claimed immunity, among other defenses, in his answer to the complaint, it was apparently not pressed in the district court. The district judge did not address it. More importantly, except for a passing statement by defense counsel that Gardner acted in good faith, the defense is undeveloped in the briefs filed with us.

Moreover if we were to conclude that a hearing officer like Gardner has only qualified immunity, this record leaves the question of Gardner’s good faith in declining to permit the witnesses to testify very much an open question. Thus we do not reach the immunity issue because a possibly significant factual basis for invoking the doctrine is not free from doubt, because it was not urged upon or addressed by the district court, and because it is not addressed or urged upon us in this appeal.