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September 23, 1994

VINCENT McCANN, Plaintiff,

The opinion of the court was delivered by: LEWIS A. KAPLAN

 KAPLAN, District Judge.

 This action is brought pursuant to 42 U.S.C. § 1983 by a former inmate at the Orange County Correctional Facility ("OCCF") who claims that he was placed in "keeplock" for twenty-four hours in violation of his right to due process of law under the Fourteenth Amendment. Plaintiff asserts that keeplock was imposed for punitive reasons, that this motivation triggered a right to an adversary hearing under Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), and that no such hearing was held. Even if the keeplock was administrative rather than punitive, plaintiff contends that he was not given an opportunity to make a statement to the responsible official and that this violated his rights under Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983).

 This is the Court's decision following a bench trial.

 The case arises out of an incident that occurred on November 13, 1986 in K tier, a section of the OCCF then used to house inmates with mental health needs (Traverse 32:25-33:3). *fn1" The plaintiff, Vincent McCann, who was on an unspecified medication and undergoing alcohol detoxification (McCann 7:17-23), then was incarcerated in K tier pending trial on unspecified charges. The defendants are Roger Phillips, Sheriff of Orange County, and Dean Traverse, a lieutenant at OCCF at the time of the incident in question and now a sergeant with the Orange County Sheriff's Department.

 The Events of November 13, 1986

 On November 13, 1986, ten inmates were assigned to K tier including McCann and one Luis Baron. Baron occupied cell K-1 and McCann the adjacent cell, K-2. (PX 11) The entire tier was quite small, with a corridor about four feet wide and perhaps sixty feet long outside the ten cells. (See McCann 10:22-24, 19:9-10)

 Between 11:50 a.m. and 12 noon on November 13, 1986 a number of inmates were outside their cells, "milling around" or watching television, when inmate Baron began screaming for an officer. Correction Officer ("CO") O'Hara came to his cell. Baron told O'Hara that someone had thrown "piss" on him. According to McCann, Baron "wouldn't quiet down." (McCann 10:5-11:4) At 12:05 p.m., CO Ballard relieved CO O'Hara. (PX 8 at 226-227) Ballard almost immediately called Corporal Varden and reported that inmates on K tier had been throwing water and were abusing inmate Baron.

 Lieutenant Traverse was notified of the incident, *fn2" and Traverse and CO Diamond went to K tier. (Traverse 32:12-24) Upon arriving, Traverse learned that Baron had been locked in cell K-1 at his own request for his own protection. (Id. 33:8-10) Traverse inspected Baron's cell and found that Baron's belongings were saturated with liquid. (Id. 33:14-20)

 Traverse then spoke to other inmates present in an effort to find out what had happened, but none told him what had transpired. (Id. 34:13-35:2) In consequence, Traverse, after conferring with Captain Riccardi, directed that McCann and five other inmates be placed in "keeplock" -- locked in their cells -- for twenty-four hours save for a one hour recreation period. (Id. 35:3-36:13) Thus, all those present who were not already in keeplock were placed in that status. *fn3"

 At virtually the same time, CO Ballard issued notifications of violations of rules of conduct ("Infraction Notices") to McCann (PX 1; McCann 24:11-15) and at least three other inmates, David Montanya, Edward Van Amburgh and Rufus Gibbs. (Ans. Exhs. 2-3, PX 13 (attachments); PX 4) Each of the Infraction Notices, which are printed forms with handwritten completions, stated in part:

"You are accused of an act of misconduct as indicated below by the person(s) signed as the accuser(s). You may be confined to your cell for a period of 24 hours. The Ombudsman will investigate the allegation."

 The specific alleged conduct written into each of the printed forms stated: "Residents on 'K' side were throwing liquid at resident Baron (K-1)." (Id.) This was said to constitute "conduct disrupting orderly running of facility" (id.), a violation of the OCCF rules (PX 2 at 15-16).

 Although there was no evidence of any disorder or rowdiness in the 11:30 a.m. to 12:30 p.m. period, beyond the fact that water had been thrown on Baron, (McCann 10:18-11:17) there was evidence of recent prior thefts and fights on K tier (Traverse 34:13-18, 60:3-61:9, 61:19-62:16), and the log for the day in question indicates that the atmosphere was not calm. *fn4" Lieutenant Traverse testified that he imposed keeplock in this case because K tier was the mental health unit, it was occupied by inmates in various states of mental treatment, "things were getting a little out of hand," and all of the inmates in the tier were entitled to protection. (Traverse 38:12-20, 46:5-22, 48:5-12) Traverse said that his decision was the result of a cumulation of these factors.

 (Traverse 46:16-22) Traverse's contemporaneous report, however, stated:

"This [keeplock order] is based on the fact that although they were not all throwing water, etc. on inmate Baron, none took any action to prevent or terminate this behavior. (PX 5)

 I find that Lieutenant Traverse was motivated by a desire to reassert control over K tier in light of the Baron and previous incidents to which he alluded at trial. I find further that he thought, given the lack of any evidence of which of the inmates was responsible for the Baron incident, that charging all those possibly responsible and holding them for up to 24 hours pending further inquiry was an appropriate means to that end. I find also, however, that he intended in part to punish the K tier inmates for failing to prevent or terminate the Baron incident. Hence, his motives, in the parlance of the cases, were both administrative and punitive.

 In seeking to show a purely punitive motive, plaintiff claimed that inmate Ault, shortly after keeplock was imposed, confessed to having doused inmate Baron, but that Lieutenant Traverse nonetheless insisted that plaintiff and the others remain in keeplock.

 McCann testified that soon after he and the other inmates on K tier were locked in and given Infraction Notices, he heard Ault tell CO Ballard that Ault had thrown water on Baron and that Ault did not want the others to suffer for what he had done. (McCann 12:7-14:19, 24:11-24) Plaintiff offered as well an unsworn statement of Ault, acknowledged before a notary public, *fn5" which stated that Ault confessed to the officer on duty that he had thrown the water on Baron, and that he did so about fifteen minutes after everyone had been put in keeplock. (PX 9) According to McCann, Ballard then went to the office at the front of the block. McCann and the other inmates were screaming to be released. Plaintiff testified that he heard Ballard speak to someone on the telephone. Ballard returned and, according to McCann, stated that Lieutenant Traverse, when told of Ault's statement, said "Fuck them. Keep them locked in anyway." (McCann 15:23-18:11) *fn6" Traverse denied ever having been told that inmate Ault admitted throwing the liquid on inmate Baron. (Traverse 39:9-13) CO Ballard, whose current whereabouts apparently are unknown to either side, did not testify. *fn7"

 In view of McCann's testimony and a roughly contemporaneous corroborating note in OCCF records, I find that Ault at some time on November 13 or 14 took responsibility for throwing water on Baron. *fn8" I find also that Lieutenant Traverse was informed, prior to the end of the keeplock period, of Ault's statement, and I credit McCann's account of CO Ballard's alleged report of his supposed telephone conversation with Traverse.

 The effect of the keeplock order was that McCann was kept in his cell for twenty-four hours except for a one hour recreation period. (McCann 9:2-22) He was not, during that period, permitted television, shower or telephone privileges or the limited freedom of movement usually accorded inmates. (Id.) As he would have been locked in between 11 p.m. and 7 a.m. in any event (Traverse 37:14-18), he was confined to his cell for fifteen additional hours.

 At no time during the keeplock period was McCann given an opportunity to make any statement to Traverse concerning the ...

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