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. Robinson, 719 F.2d 1214 (3d Cir. 1983). Plaintiff's claim against defendant Judge, then, will be dismissed.
Finally, plaintiff names defendant Telipiski because he was escorting plaintiff when defendant Clark encountered them. Plaintiff believes defendant Telipiski should have aided him somehow with the situation. The Constitution does not guarantee that guards will help inmates with misconducts. Therefore, plaintiff's claim against this defendant will be dismissed.
Accordingly, for the reasons set forth above, plaintiff's claims under 42 U.S.C. §§ 1985 and 1986 will be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d). Plaintiff's claims under 42 U.S.C. § 1983 against defendants Clark, Judge and Telipiski, and his claim under 42 U.S.C. § 1983 against defendant Howard, Sr. relating to the second misconduct will be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d). Plaintiff's claims pursuant to 42 U.S.C. § 1983 against defendant Howard, Jr. and defendant Howard, Sr. with respect to the first misconduct hearing may proceed. The court notes plaintiff's request for appointment of counsel, but will defer its decision on that request until such time as defendants have responded to the complaint.
AND NOW, this day of January, 1987, in accordance with the Memorandum filed this date,
IT IS ORDERED that:
1. Leave to proceed in forma pauperis is GRANTED.
2. Plaintiff's claims under 42 U.S.C. §§ 1985 and 1986 are DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(d).
3. Plaintiff's claims under 42 U.S.C. § 1983 against defendants Clark, Judge, and Telipiski, and his claim under 42 U.S.C. § 1983 against defendant Howard, Sr. relating to the second misconduct are DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(d).
4. As to the remaining claims under 42 U.S.C. § 1983 against defendants Howard, Sr. and Howard, Jr., the complaint is to be filed, the summonses are to issue, service is to be made upon defendants, and a copy of this Order is to be directed to plaintiff.
5. All original pleadings and other papers submitted for consideration to the Court in this case are to be filed with the Clerk of this Court. Copies of papers filed in this court are to be served upon counsel for all other parties (or directly on any party acting pro se). Service may be by mail. Proof that service has been made is provided by a certificate of service. This certificate should be filed in the case along with the original papers and should show the day and manner of service. An example of a certificate of service by mail follows:
"I, (name), do hereby certify that a true and correct copy of the foregoing (name of pleading or other paper) has been served upon the (name(s) of person(s) served) by placing the same in the U.S. Mail, properly addressed, this (date) day of (month), (year).