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January 28, 1987

EDWARD HOWARD, SR., Individually and in his official capacity as Hearing Examiner, et al.

The opinion of the court was delivered by: NEWCOMER


 Plaintiff has filed a civil rights complaint asserting causes of action under 42 U.S.C. §§ 1983, 1985 and 1986. Accompanying the complaint is a request to proceed in forma pauperis. Since it appears plaintiff is unable to prepay the cost of commencement of this suit, leave to proceed in forma pauperis will be granted.

 Plaintiff names as defendants Hearing Examiner Howard, Sr.; Corrections Officers Judge, Howard, Jr., and Telipiski; and Captain Clark, all of whom are officials of the State Correctional Institution at Graterford. He states that defendant Howard, Jr. falsely accused him of a misconduct and that he was found guilty of the misconduct after a hearing before defendant Howard, Sr. Several months later plaintiff was charged with another misconduct while being escorted by defendant Telipiski to work assignment. Plaintiff was charged with this misconduct by defendant Clark who witnessed the incident. Plaintiff states that defendant Clark directed defendant Howard, Jr. to write the misconduct report, and then defendant Clark signed it. Plaintiff alleges that defendants' actions denied him his constitutional right to due process.

 Plaintiff's citation of 42 U.S.C. § 1985 is inappropriate. Section 1985 has several subsections which cover numerous situations where defendants conspire to interfere with a plaintiff's civil rights. U.S. ex rel. Hoss v. Cuyler, 452 F. Supp. 256, 278-79 (E.D.Pa. 1978). Only those cases that fit into the specific categories of § 1985 are actionable. Brown v. Chaffee, 612 F.2d 497, 502 (10th Cir. 1979). Plaintiff does not specify under which subsection he wishes to proceed, but analysis of his complaint reveals that it fits none of them. First, there is no allegation of interference with federal officials or proceedings as required by § 1985(1) and the first part of § 1985(2). Nor are there allegations of a conspiracy motivated by racial animus as required for a claim under the second part of § 1985(2) and § 1985(3). Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). Finally, plaintiff fails to allege a conspiracy which is a necessary element for a claim under any of the subsections of § 1985. Therefore, plaintiff's claims under § 1985 will be dismissed.

 Plaintiff's claims under § 1986 fare no better. Section 1986 creates a cause of action against persons who neglect to prevent a § 1985 conspiracy. Since plaintiff fails to allege facts supporting his claims under § 1985, his § 1986 claims necessarily fail. Williams v. St. Joseph Hospital, 629 F.2d 448, 452 (7th Cir. 1980); Brawer v. Horowitz, supra at 841; Lyon v. Temple University, 507 F. Supp. 471, 479 (E.D.Pa. 1981). Consequently, plaintiff's claims under § 1986 will also be dismissed.

 In Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the Supreme Court set forth the requirements of due process in prison disciplinary proceedings. The inmate facing misconduct charges must be given written notice of the charges, a written statement by the factfinders as to the reasons for the disciplinary action, a hearing before an impartial tribunal, and a limited opportunity to call witnesses and present documentary evidence. Id. at 563-571.

 Plaintiff alleges that defendant Howard, Sr. denied him the right to an impartial tribunal at his disciplinary hearings. Plaintiff bases this allegation with respect to the first disciplinary hearing on the fact that defendant Howard, Sr. is the father of defendant Howard, Jr., the corrections officer who charged plaintiff with the first misconduct. With respect to the second disciplinary hearing, plaintiff bases this allegation on the fact that defendant Howard, Sr. was employed as a corrections officer for many years before assuming the duties of hearing examiner, and during that time he worked with defendant Clark, the officer who witnessed and approved the second misconduct.

 The requirement of an impartial tribunal is satisfied so long as "those officials who have a direct personal or otherwise substantial involvement, such as major participation in a judgmental or decision-making role, in the circumstances underlying the charge" do not sit on the inmate's misconduct hearing committee. Meyers v. Alldredge, 492 F.2d 296, 306 (3d Cir. 1974). See also Rhodes v. Robinson, 612 F.2d 766, 773 (3d Cir. 1979); U.S. ex rel. Silverman v. Commonwealth of Pennsylvania, 527 F. Supp. 742 (W.D.Pa. 1981), aff'd, 707 F.2d 1397 (3d Cir. 1983). The fact that defendant Howard, Sr. was a co-worker of the officer who charged plaintiff with the second misconduct is not, in and of itself, violative of plaintiff's right to due process. Plaintiff does not state that defendant was in any way personally involved in or connected to the circumstances giving rise to the misconduct charge. Consequently, no claim is stated with respect to the second misconduct hearing.

 Plaintiff, however, may state a claim with respect to the first misconduct hearing. The fact that defendant Howard, Sr. is the father of the charging officer, defendant Howard, Jr., presents a potential, if not very real, conflict of interest which could taint the impartiality required in a misconduct hearing, and thereby violate plaintiff's right to due process. Although plaintiff does not allege that defendant Howard, Sr. was personally involved in the circumstances underlying the misconduct charge, the father-son relationship of the hearing examiner and the charging officer establishes a personal connection to those circumstances. While plaintiff's first misconduct hearing may have comported with the procedural requirements of the process, the hearing examiner's family tie to the charging officer creates the appearance of impropriety and is not in harmony with the spirit of due process.

 Recently, the situation described by plaintiff was considered by Judge Huyett in Tate v. Howard, No. 85-3390 (E.D.Pa. April 26, 1986). In that case, no constitutional violation was found. Tate v. Howard, however, is distinguishable from the instant complaint. First, Tate v. Howard was decided on a motion for summary judgment. The court, then, had before it defendant's answer and each party's brief regarding the motion and, hence, more information to examine before reaching its decision. Additionally, the plaintiff in Tate v. Howard pled not guilty to the misconduct charge, but failed to make any statement or present any defense at the hearing. Id. at 2. Here, it appears that plaintiff presented his version of events at the misconduct hearing. It also appears that the outcome of the hearing rested on whether defendant Howard, Sr. gave credence to plaintiff's explanation of the incident or to his son's description. Finally, the record of the hearing in Tate v. Howard, "amply demonstrated that there was sufficient evidence to support [the Hearing Examiner's] conclusions." Id. at 5. The posture of the instant complaint makes it impossible to make such an evaluation. Accordingly, plaintiff's claim against defendant Howard, Sr. with respect to the first misconduct hearing may proceed.

 Plaintiff next states that defendant Howard, Jr. falsely accused him of a misconduct. An allegation that a corrections officer falsely charged an inmate with a misconduct fails to state a claim under § 1983 where the procedural due process protections set forth in Wolff v. McDonnell, supra, have been provided at the inmate's disciplinary hearing. Hanrahan v. Lane, 747 F.2d 1137 (7th Cir. 1984). Conversely, where due process protections may not have been provided, as is the case with the misconduct charge filed by defendant Howard, Jr., such an allegation may state a claim under § 1983. Therefore, plaintiff's claim against defendant Howard, Jr. may proceed.

 Plaintiff's claim against defendant Clark revolves around the fact that he witnessed and ordered that a misconduct charge be prepared, and then approved the misconduct charge as the captain on duty. The court fails to see how defendant Clark's actions in signing the misconduct report instead of another captain denied plaintiff any due process rights. Plaintiff received the basic due process requirements of Wolff with respect to this misconduct charge, and any other variations in procedure are not matters this court will consider.

 As with defendant Clark, no claim is stated as against defendant Judge. Plaintiff alleges that defendant Judge violated his constitutional rights when, pursuant to defendant Clark's order, he prepared the misconduct report. Plaintiff fails again to show how this was so egregious is to violate his constitutional rights. The mere fact prison procedures may not have been followed exactly states no claim. See Drayton v. ...

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