
    Brendan McGUINNESS, Plaintiff, Appellee, v. Larry E. DUBOIS, et al., Defendants, Appellants. Brendan M. McGUINNESS, Plaintiff, Appellant, v. Larry E. DUBOIS, et al., Defendants, Appellees.
    Nos. 95-1479, 95-1480.
    United States Court of Appeals, First Circuit.
    Submitted Sept. 28, 1995.
    Decided Feb. 12, 1996.
    
      . Brendan M. McGuinness on brief pro se.
    Nancy Ankers White, Special Assistant Attorney General, and Philip W. Silva, Department of Correction, on brief for appellees, Larry E. Dubois, et al.
    Before SELYA, STAHL and LYNCH, Circuit Judges.
   PER CURIAM.

The defendants, John Treddin, a disciplinary hearing officer at Massachusetts Correctional Institute — Cedar Junction (MCI-CJ) and Ronald Duval, the superintendent at MCI-CJ, appeal the grant of a declaratory judgment in favor of inmate Brendan McGuinness. McGuinness cross-appeals the grant of summary judgment on the ground of qualified immunity in favor of the defendants on his claims for damages. We reverse the declaratory judgment in favor of McGuinness and affirm the summary judgment on the damages claims.

I.

In November 1991, McGuinness got into an altercation with a prison guard, Sergeant John Andrade, and was charged with various prison disciplinary code violations, including being out of place, disrupting the security or orderly running of the institution, fighting and use of abusive language. A few days later, McGuinness was notified of a disciplinary hearing and moved to MCI-CJ’s West Wing Segregation Unit (‘West Wing”). He was placed in the upper tier of the West Wing, i.e., in the AAU. McGuinness’ disciplinary hearing was held in the West Wing on January 9, 1992. Both McGuinness and Andrade testified and Andrade submitted his written report. McGuinness admitted that he argued with, used foul language toward, and struck Andrade, but claimed that he was provoked when Andrade pushed him. Andrade acknowledged that he pushed McGuinness away when McGuinness got right up in his face. McGuinness’ request to call three inmate witnesses from the general population, (who he alleged were eyewitnesses), was denied “for security reasons.” However, Officer Treddin considered their written affidavits. Ultimately, Treddin deemed the three affidavits “non-credible” because in Treddin’s opinion all three inmates saw the confrontation only in part. Treddin found McGuinness guilty based on McGuinness’ own admissions and Andrade’s written report and testimony. Treddin imposed a sanction of 30 days in isolation and recommended that McGuinness lose 100 days of good-time credit.

McGuinness appealed the matter to defendant Superintendent Duval, claiming, inter alia, that Treddin wrongfully portrayed McGuinness as the aggressor and wrongfully denied his request for witnesses due to McGuinness’ placement in the West Wing. He argued that his witnesses “would have been able to explain what they saw much better if given a chance to give an oral testimony.” Duval denied McGuinness’ appeal. Eventually, the incident was referred to the DSU board and, pursuant to a finding, based on this.November 1991 incident and a subsequent incident or incidents in January 1992, that McGuinness presented a substantial threat to the safety of others, McGuinness received a two year sentence of confinement to the DSU (in addition to the sanction of 30 days in isolation and loss of 100 days of good-time credit).

II.

In November 1993, McGuinness filed an action in the district court, pursuant to 42 U.S.C. § 1983, naming Officer Treddin and Superintendent Duval as defendants (as well as other prison officials not pertinent here). McGuinness’ complaint raised several claims, most of which are not involved in these cross-appeals. The counts which remain relevant are these: Count 2 alleged that Treddin violated McGuinness’ right to due process. In particular, McGuinness alleged that he had been unlawfully transferred to the West Wing prior to any guilty finding and that Treddin used this alleged illegal placement in the West Wing as the sole reason for denying his request for witnesses. Count 4 alleged that Superintendent Duval violated McGuinness’ right to due process by denying his appeal without any explanation. McGuinness asked for compensatory and punitive damages on these claims. In Count 6 McGuinness requested a declaratory judgment that his placement in the West Wing was illegal and the denial of witnesses due to his placement there violated due process.

The parties cross-moved for summary judgment. In a memorandum and order, dated March 15, 1995, the district court concluded that genuine issues of material fact existed as to whether (a) McGuinness’ placement in the AAU constituted an unlawful placement in a segregation unit prior to a guilty finding, the imposition of sanctions, and the appropriate finding of “substantial threat” by the Commissioner; and (b) Treddin’s refusal to allow McGuinness to call witnesses violated “the rule of Kenney [v. Commissioner of Correction, 393 Mass. 28, 468 N.E.2d 616 (1984)].” The court, therefore, declined to enter a declaratory judgment, as requested in Count 6, in any party’s favor. The court did conclude, however, that the state of the law on this issue was confused and, thus, Treddin and Duval were entitled to summary judgment on the ground of qualified immunity on MeGuinness’ damages claims — Count 2 (Treddin) and Count 4 (Du-val).

Count 6 then went to a one-day bench trial at which Officer Treddin testified. The court’s findings of fact and rulings of law can be found at McGuinness v. Dubois, 887 F.Supp. 20, 21-23 (D.Mass.1995). In brief, the court ruled that the AAU is not a DSU. Thus, the court rejected MeGuinness’ initial premise, i.e., that his placement in the AAU constituted an unlawful placement in the DSU prior to the required findings by the Commissioner. Nonetheless, the court held that MeGuinness was “not given the protections afforded him by Department of Correction regulations” as interpreted by Kenney and subsequent caselaw. The court declared that Treddin’s determination must be set aside and that the rulings that followed the disciplinary hearing are void and of no effect and may play no part whatsoever in any further classification, penal, disciplinary, or release decisions with respect to MeGuinness. ■

As noted at the outset, Treddin and Duval appeal this ■ declaratory judgment and MeGuinness cross-appeals the March 15 summary judgment denying his claims for damages.

in:

In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court held that a state-created right to good-time credit for satisfactory behavior, forfeitable only for serious misbehavior, is a sufficient liberty interest within the Fourteenth Amendment to entitle the inmate to “those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” Id. at 557, 94 S,Ct. at 2975. In Wolff, the Court determined that,, at a minimum, due process entitled an inmate, facing a disciplinary hearing, to (1) advance (no less than 24 hours) written notice of the claimed violation, (2) a 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, and (3) a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken. Id. at 563-67, 94 S.Ct. at 2978-80.

These cross-appeals concern the second of these due process requirements — the parameters of the inmate’s qualified right to call witnesses. The district court found, and the defendants do not dispute, that MCI-CJ has an institutional policy of denying an inmate’s request to call inmate witnesses Jrom the general population at a disciplinary hearing held in the West Wing. This policy is based on the heightened security requirements in the West Wing, which houses inmates with a demonstrated proclivity for violence and disruption, and on the resulting effect that bringing witnesses into the West Wing has on the allocation of corrections officers there and in the rest of the prison. Any inmate entering the West Wing from the general population has to be strip-searched and accompanied by two correction officers; restraints are required to move inmates within the West Wing; and restraints may, or may not, be used in the presence of hearing officers at disciplinary hearings.

The court held that the Kenney decision, i.e., “the rule oí.Kenney,” and subsequent easelaw prohibits the denial of witnesses’ testimony simply based on an inmate’s location in the West Wing and that the easelaw and the prison regulations require an individualized assessment that calling a particular witness would be unduly hazardous to institutional safety or correctional goals. The court found that no individualized assessment occurred. in McGuinness’ case and thus McGuinness was not given the protections afforded him by the regulations as interpreted by Kenney and its progeny.

To a large extent, however, Kenney was simply an interpretation of the requirements of state law. In Kenney, inmate Kenney had been transferred to the DSU prior to his disciplinary hearing on assault charges and confined there under the same conditions as those inmates transferred to the DSU pursuant to a finding by the Commissioner that their behavior posed a substantial threat to the residents, property, or operations of the institution. Kenney v. Commissioner of Correction, 393 Mass, at 29, 468 N.E.2d 616. At his disciplinary hearing, Kenney’s request that the two alleged victims (both inmates in the general population) be allowed to appear as witnesses was denied. Kenney subsequently brought an action in state court and on appeal the SJC found that the prison officials had violated their own regulations, which have the force of state law, by placing Kenney in a DSU cell for committing a disciplinary offense before Kenney had been found guilty, before sanctions had been imposed, and before the Commissioner had found that Kenney posed a substantial threat to the institution. Id. at 33-34, 468 N.E.2d 616. As Kenney was illegally incarcerated in the DSU, the court rejected the prison officials’ attempt to justify their denial of his request to call witnesses on basis of his locátion in the DSU. Id. at 35, 468 N.E.2d 616.

To the extent that “the rule of Kenney ” is solely a rule of state law, it has no application in this § 1983 action claiming a deprivation of McGuinness’ rights secured by the federal Constitution and laws. “Federal constitutional standards rather than state statutes define the requirements of procedural due process.” Russell v. Selsky, 35 F.3d 55, 60 (2d Cir.1994) (internal quotation marks and citation omitted). “The failure of the [disciplinary] board to comply with its own regulation would constitute a denial of due process if the regulation were mandated by the Constitution or federal law.” Domegan v. Fair, 603 F.Supp. 360, 364 (D.Mass.1985); see also Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 1748-9, 75 L.Ed.2d 813 (1983) (“The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.”) (Footnote omitted). “The rule of Kenney,” therefore, is relevant to McGuinness’ § 1983 action only to the extent that Kenney accurately recites the parameters of federal due process.

The SJC did consider whether Kenney’s due process rights were violated by the denial of his request to call certain witnesses. Kenney v. Commissioner of Correction, 393 Mass, at 34, 468 N.E.2d 616. But that determination was based on its conclusion that due process requires some support in the administrative record to justify the denial and none was found in Kenney’s case. Id. at 35, 468 N.E.2d 616, citing Real v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 399, 407, 456 N.E.2d 1111 (1983). However, the Supreme Court has since held that due process does not require that support for the denial of witnesses exist as part of the administrative record; rather prison officials may satisfy due process by presenting testimony in court if the deprivation of a liberty interest is challenged because of that claimed defect in the hearing. Ponte v. Real 471 U.S. 491, 496-97, 105 S.Ct. 2192, 2195-96, 85 L.Ed.2d 553 (1985), vacating and remanding, Real v. Superintendent, Mass. Correctional Inst., Walpole, supra.

Insofar as Kenney speaks to the commands of due process, therefore, we disagree with the district court’s conclusion that, “properly interpreted,” Kenney stands for the proposition that “witnesses cannot be denied in a disciplinary hearing simply based upon the location of the individual within the prison.” McGuinness v. Dubois, 887 F.Supp. at 22. Further, of import is the Kenney court’s treatment of Devaney v. Hall 509 F.Supp. 497 (D.Mass.1981). In Devaney, the district court held that the “across-the-board” policy of MCI-CJ [then called MCI-Walpole] of permitting only written statements of witnesses in disciplinary hearings held in the DSU [then called Block 10] did not violate due process as it was not arbitrary nor beyond the discretion of prison authorities to adopt. Id. at 500-01. In Kenney, the SJC distinguished Devaney on the ground that, unlike Devaney, Kenney was not lawfully held in the DSU and reliance on his location as a justification for the denial of witnesses, was therefore unreasonable. Kenney v. Commissioner of Correction, 393 Mass, at 35 n. 11, 468 N.E.2d 616. If, “properly interpreted,” Kenney stands for the proposition that witnesses cannot be denied in a disciplinary hearing simply based upon the location of the individual within the prison, whether lawfully confined in that area or not, then the SJC would not have distinguished Devaney; rather, the SJC would have expressed disagreement with Devaney ’s holding. But the SJC did not do that.

Although we disagree with the district court’s interpretation of “the rule of Kenney,” insofar as the district court interprets that rule as speaking to the requirements of federal due process, we note that to prohibit live defense witness testimony at a disciplinary hearing, numerous courts have interpreted the due process teachings of the Wolff opinion to require an individualized decision, based on the facts of each case. See, e.g., Mitchell v. Dupnik, 67 F.3d 216, 223 (9th Cir.1995); Forbes v. Trigg, 976 F.2d 308, 317 (7th Cir.1992), cert. denied, 507 U.S. 950, 113 S.Ct. 1362, 122 L.Ed.2d 741 (1993); Ramer v. Kerby, 936 F.2d 1102, 1104 (10th Cir.1991); King v. Wells, 760 F.2d 89, 93 (6th Cir.1985); Dalton v. Hutto, 713 F.2d 75, 78 (4th Cir. 1983); Bartholomew v. Watson, 665 F.2d 915, 918 (9th Cir.1982); but see Powell v. Coughlin, 953 F.2d 744, 749 (2d Cir.1991). The Supreme Court, itself, has addressed the validity of an “across-the-board” policy denying witness requests only indirectly. While, in Ponte, it disagreed with the Massachusetts prison officials’ contention that “ ‘across-the-board’ policies denying witness requests are invariably proper,” Ponte v. Real, 471 U.S. at 496, 105 S.Ct. at 2195-96, as the Second Circuit has said, the Court “has not ruled that such policies are invariably improper.” Powell v. Coughlin, 953 F.2d at 749 (holding that an across-the-board policy barring the testimony of mental health staff in an inmate’s presence at prison disciplinary hearings does not violate due process as the policy is reasonably based on legitimate penological interests and is not an exaggerated response).

Although some particular case in the future may present compelling evidence that MCI-CJ’s policy of denying live testimony from inmate witnesses ,at a disciplinary hearing held in the West Wing violates due process, we leave consideration of such a case where it appears presently to reside — in the future. We find that, on the facts of this case, the district court erred in concluding that the application of this policy to McGuinness violated his right to due process. McGuinness contends that he was provoked into striking Andrade and that should lessen any penalty imposed. McGuinness concedes that, contrary to the prison rules, he did not inform Officer Treddin in advance about the content of the expected testimony of Justin Holmes and Jack Shea, other than characterizing them as eyewitnesses. Nonetheless, Treddin obtained their affidavits, along with the affidavit of a third inmate, Michael Dowd, whose testimony McGuinness had not previously requested. Treddin concluded that none of the three saw the whole confrontation — a factual determination certainly within his discretion to make and not within a court’s competency to overturn. See Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 454-55, 105 S.Ct. 2768, 2773-74, 86 L.Ed.2d 356 (1985) (holding that procedural due process is satisfied if the decision to revoke good-time credits is supported by “some evidence” in the record, which “does [not] imply that a disciplinary’s board’s factual findings ... are subject to second-guessing upon review”).

The guilty finding was based on the undisputed facts that McGuinness was out of his cell, acting disruptive, and used abusive language and assaulted a staff member. McGuinness was permitted to present his defense, supported by witness affidavits, that he was provoked. He has never suggested what their live testimony would have added, other than that they would have been able to “explain what they saw much better.” The live testimony of the requested witnesses was denied on the basis of a policy — the bona fides of which have not been challenged here — rooted in legitimate institutional security concerns. In these circumstances, the defendants have carried their burden of proving that the denial of live testimony was neither arbitrary nor capricious, see Smith v. Mass. Dept. of Correction, 936 F.2d 1390, 1399 (1st Cir.1991), and that Treddin did not clearly abuse his considerable discretion, see Hurney v. Carver, 602 F.2d 993, 995 (1st Cir.1979), in denying McGuinness’ request for the live testimony of Holmes, Shea, and Dowd, even if the denial was based on a general policy of denying live witness testimony in the West Wing. “[S]o long as the reasons are logically related to preventing undue hazards to ‘institutional safety or correctional goals,’ the explanation should meet the due process requirements as outlined in Wolff.” Ponte v. Real, 471 U.S. at 497, 105 S.Ct. at 2196.

IV.

The declaratory judgment of May 1, 1995, in favor of plaintiff McGuinness on Count 6 is reversed. As we have concluded that McGuinness’ constitutional rights were not violated, the March 15, 1995 order granting summary judgment in favor of defendants Treddin and Duval on Counts 2 and 4 is affirmed. So ordered. No costs. 
      
      . The West Wing is comprised of two sections. The two upper tiers are denominated as the "Awaiting Action Unit" ("AAU"). The AAU is a secure holding area for an inmate while he is awaiting a disciplinary hearing. The lower tiers of the West Wing are the Departmental Segregation Unit ("DSU"). According to prison regulations, an inmate may be placed in the DSU only after a finding by the Commissioner of Correction (or his designee) based on substantial evidence that, if confined in the general population, the inmate poses a substantial threat (i) to the safety of others, (ii) of damaging or destroying property, or (iii) to the operation of the correctional facility. Mass.Reg.Code tit. 103, § 421.09 (1990).
     
      
      . The district court construed Count 4 as a claim against Duval, not on the basis of respondeat superior (which would not lie, pursuant to § 1983, in any event), but as a claim that Duval was personally liable for failing to take remedial action after learning of the alleged due process violation through MeGuinness’ appeal following the disciplinary hearing. Thus construed, the district court found Duval, nonetheless, entitled to qualified immunity.
     
      
      . Recently, the Court, in Sandin v. Conner, - U.S. -, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), refocused the due process inquiry away from the parsing of the mandatory/discretionaiy language in prison regulations and back to the nature of the deprivation, i.e., whether the restraint "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” or "will inevitably affect the duration of his sentence.” Id. at -----, 115 S.Ct. at 2299-302. In Sandin, the Court concluded that solitary confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. Id. at-, 115 S.Ct. at 2301. Nor did it inevitably affect the duration of Conner's sentence. Id. at-, 115 S.Ct. at 2302.
      
        Sandin, however, did not retreat from Wolffs holding that, if a state statutory provision created a liberty interest in a shortened prison sentence which results from good-time credits, revocable only .if the inmate is guilty of serious misconduct, that inmate is entitled to the procedural protections outlined in Wolff. Id. at-, 115 S.Ct. at 2297; see also Gotcher v. Wood, 66 F.3d 1097, 1101 (9th Cir.1995) (opining that Wolffs due process principles remain applicable in the context of revocation of statutory good-time credits after Sandin).
      
      Massachusetts has a statutory provision, Mass. Gen.L. ch. 127, § 129, awarding a good conduct deduction from an' inmate’s maximum imprisonment term, forfeitable for violations of prison rules. And, in the instant case, as a result of the guilty finding on the disciplinary charge, MeGuinness forfeited 100 days of good-time. MeGuinness, therefore, was entitled to the procedural protections of the Due Process Clause prior to the revocation of his statutoiy good-time credits. (Although Mass.Gen.L. ch. 127, § 129 was repealed on July 1, 1994, the repealing provision also provided that the law in effect at the time an offense is committed governs sentencing for that offense, i.e., the repealed section still applies to MeGuinness, whose offense was committed prior to July 1, 1994.)
      As explained in greater detail, infra, the issue ■ in these appeals is what process was due MeGuinness at his disciplinary hearing under federal constitutional law.
     
      
      . The court also found, however, that there were occasions, although rare, when a disciplinary hearing involving an inmate housed in the West Wing had been moved outside that wing.
     
      
      . To the extent that the prison officials arbitrarily violated their own state law regulations, it would appear that McGuinness could have pursued state judicial review. See Saridin v. Conner, -U.S. at--n. 11, 115 S.Ct. at 2302 n. 11.
     
      
      . Similarly, we conclude that neither Guyton v. Dubois, No. 92-1819 (Mass.Super.Ct. July 20, 1992), nor Abrazinski v. DuBois, 876 F.Supp. 313 (D.Mass.1995), further support any due process determination. Guyton was found to have been unlawfully held in the DSU and thus Guyton is simply a straightforward application of Kenney. The Abrazinski court’s discussion of Kenney was dicta and, in any event, for reasons discussed, supra, we disagree with that court’s reading of Kenney as holding that "isolation in a segregation unit alone, even if legal, is not sufficient to support a denial of witnesses.” Abrazinski v. DuBois, 876 F.Supp. at 323 (emphasis added).
     
      
      . We note that while the Bartholomew opinion stated that a blanket proscription against calling certain types of witnesses violated the “suggestion” in Wolff that the decision to deny live witness testimony should be made on a case-by-case analysis of the potential hazards which may flow from the calling of, a particular person, 
        Bartholomew v. Watson, 665 F.2d at 918, later cases, in citing Bartholomew, have, without comment, transformed this characterization of Wolff s “suggestion” into a requirement. See, e.g., Mitchell v. Dupnik, 67 F.3d at 223.
      We also note that, apart from Bartholomew, all of the above-mentioned cases that opine that an across-the-board proscription against live witness testimony violates due' process appear distinguishable from the present case in that nothing in those cases suggests that the absolute prohibitions on the calling of any witnesses or certain categories of witnesses were even purported to be based on institutional security. And, in each case cited, including Bartholomew, the across-the-board prohibition extended prison-wide in an undifferentiated fashion to all disciplinary hearings.
     
      
      . And, it is not certain that even this suggestion was made at the disciplinary hearing so that Treddin could consider it. Rather, on the record before us, this suggestion first appears in McGuinness’ written appeal of the disciplinary finding to the prison superintendent.
     