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July 27, 1994

CECIL A. COOK, Plaintiff

The opinion of the court was delivered by: BY THE COURT; ROBERT S. GAWTHROP, III

 Gawthrop, J.

 In this civil rights case, brought pursuant to 42 U.S.C. ยงยง 1983 and 1985, in which a prisoner claims defendants punished him in retaliation for the part he played in protesting the quality of medical care at the State Correctional Institution at Graterford. The jury believed him, returned a verdict in his favor against all defendants, and awarded $ 13,600 in damages for violations of his due process and first amendment rights. Defendants are seeking judgment as a matter of law, or in the alternative, a new trial. *fn1" I shall grant judgment as a matter of law in favor of all the defendants.

 Judgment as a matter of law may be granted when "there is no legally sufficient evidentiary basis for a reasonable jury to have found for [a] party," Fed. R. Civ. P. 50(a), since "the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Denneny v. Siegel, 407 F.2d 433, 439 (3rd Cir. 1969). All evidence and justifiable inferences must be drawn in favor of the prevailing party. In Re Air Crash Disaster at Mannheim Germany, 769 F.2d 115, 123 (3rd Cir. 1985). As such, I am not free to weigh the evidence, pass on the credibility of witnesses, or substitute my judgment for that of the jury. Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110, 113 (3rd Cir. 1987). However, a jury "may not be permitted to reach its verdict on the basis of speculation and conjecture." Denneny, 407 F.2d at 440. At trial, the plaintiff must be able to produce substantial evidence of sufficient facts upon which the jury may reach a logical conclusion. Id.

 The facts in this case are as follows. On July 16, 1989, plaintiff led a group of inmates to the correctional institution's central command post to demand that medical treatment be given to two sick friends. A report on the incident prepared by Correctional Officers Dohman and Williams described the gathering as peaceful. Although the report did not mention plaintiff by name, and no disciplinary action resulted from that incident, plaintiff testified at trial that both Dohman and Williams threatened him with retaliation, and followed through on that threat with a series of disciplinary actions: On September 10, 1989, Dohman, with William's approval, locked plaintiff down in his cell following a prison brawl. The next month, after another disturbance, Dohman and Williams removed Cook from the general prison population and placed him in restrictive housing. No formal disciplinary action resulted from either of these incidents. On December 18, 1989, however, Correctional Officer Lieutenant Barone, filed a misconduct report against plaintiff, charging him with planning and soliciting a prison riot which was to occur on Thanksgiving Day.

 At the hearing on these charges, Lt. Barone was the only witness. He did not have personal knowledge of the alleged misconduct, but he testified that he had been told about the planned riot by a Pennsylvania police officer who had heard about it from a confidential informant. Neither Hearing Examiner Kleiman, nor Lieutenant Barone spoke either to the police officer or to the confidential informant.

 Ms. Kleiman reported that out of the presence of the plaintiff, she conducted an in camera independent assessment of the informant's reliability and credibility at which Lt. Barone, and no one else, testified. After reopening the hearing to Mr. Cook, she found the plaintiff guilty as charged and sentenced him to 90 days in solitary confinement.

 Plaintiff filed suit against Williams, Dohman, Barone, and Kleiman. The jury found that Williams, Dohman, and Barone unconstitutionally punished plaintiff by retaliating against him for exercising his first amendment rights, and that Kleiman violated his due process rights in the manner in which she conducted the hearing. I begin with the due process issue and the jury finding of liability against Ms. Kleiman.

 The level of process due varies and is a flexible concept determined by the situation. Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). The defendants argue that, as a matter of law, Ms. Kleiman did not deprive Mr. Cook of those limited procedural rights afforded inmates facing disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). *fn2" The Supreme Court, however, has yet to rule on the manner or need by which a disciplinary hearing examiner must determine the credibility of a concealed informant. This tribunal thus examines the Third Circuit case which directly addressed the question of what quality of evidence is required for a finding of guilt at institutional disciplinary proceedings in cases involving confidential informants. Helms v. Hewitt, 655 F.2d 487, 502 (3d Cir. 1981), rev'd on other grounds, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). In Helms, this Circuit explicitly adopted the procedures set out in Gomes v. Travisono, 510 F.2d 537 (1st Cir. 1974):

(1) The record must contain some underlying factual information from which the [tribunal] can reasonably conclude that the informant was credible or his information reliable; (2) the record must contain the informant's statement [written or as reported) in language that is factual rather than conclusionary and must establish by its specificity that the informant spoke with personal knowledge of the matters contained in such statement.

 Helms, 655 F.2d at 502, citing Gomes, 510 F.2d at 540. As the jury was charged, these two requirements must be met in order to satisfy the demands of due process.

 The defendants, in arguing this post-trial motion, focus only on the question of whether there was "some evidence in the record" to support the decision of the hearing examiner, Ms. Kleiman. Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 457, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985). They claim that this test, which seeks to strike a balance between the state's interest in maintaining a secure institution and conducting an effective and controlled disciplinary hearing which affords inmates the necessary procedural safeguards, Wolff, 418 U.S. at 561-2, is the only test which must be met. The "some evidence" standard, however, only determines the amount of evidence required; it does not address the quality of that evidence. The quantum of evidence is thus relevant, but is not, by itself, determinant.

 The defendants also assert that Helms is no longer good law, having been superseded and overruled sub silentio by Hill. Despite this assertion, I find that Hill, which does not concern the reliability of concealed informants, does not undermine Helms since the cases address different aspects of the adjudicatory process. Instead, the requirements adopted by the Third Circuit in Helms can be reconciled with, and used in conjunction with the Supreme Court's "some evidence" standard. Taken together, the cases establish (1) the minimum quantum of evidence required to uphold a disciplinary proceeding's finding of guilt, and (2) the quality of evidence - the credibility and reliability of confidential sources - which must be present at such a hearing.

 The fact that the Third Circuit decided Helms four years before the Supreme Court heard Hill, and thus could not consider it as guidance, may have more attenuating effect had not this Circuit reaffirmed its position in Helms two years after Hill was handed down. Henderson v. Carlson, 812 F.2d 874, 879 (3rd ...

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