17-2230 Elder v. McCarthy

In the United States Court of Appeals For the Second Circuit ______________

August Term, 2018

(Argued: November 28, 2018 Decided: July 23, 2020)

Docket No. 17-2230 ______________

JARVIS ELDER,

Plaintiff-Appellant,

–v.–

J. MCCARTHY, SERGEANT; T. MACINTYRE, CORRECTIONAL OFFICER; KEN. KLING, HEARING OFFICER/VOC. SUPRV.; ALBERT PRACK, DIRECTOR OF SPECIAL HOUSING; MARK L. BRADT, SUPERINTENDENT,

Defendants-Appellees. ______________

B e f o r e:

KEARSE, LIVINGSTON, and CARNEY, Circuit Judges. ______________

While incarcerated at Attica Correctional Facility, Plaintiff-Appellant Jarvis Elder was accused of forging inmate account disbursement forms to steal funds from another inmate’s account. After a disciplinary hearing, a prison official found him guilty of the charged offense and sentenced him to serve six months in Attica’s special housing unit (“SHU”). Elder successfully challenged the prison’s finding in an Article 78 proceeding in New York State court on grounds (among others) that the determination was not supported by substantial evidence and that he did not receive meaningful assistance in defending against the charges. This led to annulment of the determination and expungement of his disciplinary record of theft. Elder v. Fischer,

(4th Dep’t 2014). Elder then sued prison officials under

, claiming violations of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. The United States District Court for the Western District of New York (Siragusa, J.) dismissed the Eighth Amendment claim with prejudice at the pleading stage and then awarded summary judgment to Defendants on Elder’s due process claims, concluding that Elder received all the process he was due. Elder now appeals. We conclude that Elder received adequate notice as to the charges against him. Elder’s disciplinary conviction was not sufficiently supported by the evidence, however. The disciplinary proceedings were tainted by procedural lapses that violated Elder’s due process rights. In particular, among other due process concerns, Defendant prison officers failed to consult readily available prison records to identify the officers with relevant information, limiting his ability to defend against the charges. In addition, we decide that the district court exceeded the permissible bounds of its discretion in dismissing Elder’s Eighth Amendment claim without providing him a meaningful opportunity to seek leave to amend his complaint.

AFFIRMED IN PART, REVERSED IN PART, AND VACATED AND REMANDED IN PART. ______________

FABIEN M. THAYAMBALLI (Alexandra A.E. Shapiro, on the brief), Shapiro Arato LLP, New York, NY, for Plaintiff- Appellant.

PATRICK A. WOODS (Victor Paladino & Jeffrey W. Lang, on the brief, for Barbara D. Underwood, Attorney General, State of New York), Office of the New York State Attorney General, Albany, NY, for Defendants- Appellees. ______________

CARNEY, Circuit Judge:

In 2012, while incarcerated at Attica Correctional Facility in upstate New York,

Plaintiff-Appellant Jarvis Elder was accused of forging inmate account disbursement

2 forms to steal funds from another inmate’s account. After a disciplinary hearing, a

prison official found Elder guilty of the related charges and sentenced him to serve six

months in Attica’s punitive special housing unit (“SHU”), confined to a cell with one

other person for twenty-three hours a day. Elder successfully challenged the

disciplinary decision in state court Article 78 proceedings, obtaining an annulment of

the prison’s disciplinary determination and expungement of the record of his

disciplinary infraction. Elder v. Fischer,

(4th Dep’t 2014). By the time

that decision issued, however, Elder had already served his full six-month sentence in

the SHU.

Elder then brought claims against state officials under

in the

United States District Court for the Western District of New York (Siragusa, J.). Seeking

damages and attorneys’ fees for Eighth Amendment and due process violations, Elder

sued four Attica employees (the “Attica Defendants”)—John McCarthy, a corrections

sergeant; Trevor MacIntyre, a corrections officer; Ken Kling, a vocational supervisor and

the hearing officer on Elder’s case; Mark Bradt, the Superintendent—and Albert Prack,

the Director of Special Housing/Inmate Disciplinary Programs in the New York State

Department of Corrections and Community Supervision (“DOCCS”) (the “State

Defendant”; together with the Attica Defendants, “Defendants”).

The district court dismissed Elder’s Eighth Amendment claim at the pleading

stage without allowing Elder (who was then proceeding pro se) an opportunity to seek

leave to amend. The court later granted summary judgment to Defendants on Elder’s

due process claims, concluding that prison officials had given Elder all the process he

was constitutionally due. Elder now appeals the district court’s final judgment.

Elder urges that the record on summary judgment establishes that prison

officials wrongly deprived him of his right to due process by denying him the ability to

call witnesses, to receive adequate assistance in preparing his defense, to receive fair

3 notice of the charges, and to be disciplined only upon a showing of “some reliable

evidence” of guilt, see Sira v. Morton,

(2d Cir. 2004). He contends that the

district court erred in ruling otherwise. As to his Eighth Amendment claim that he

suffered cruel and unusual punishment, Elder submits that he was entitled to an

opportunity to cure the defects that the district court identified in his complaint—and

that he could cure them.

On de novo review of both the summary judgment and motion to dismiss

decisions, we conclude that the district court correctly dismissed Elder’s due process

claim that rested on a theory of inadequate notice. Accordingly, we AFFIRM the district

court’s judgment as to this claim. We sustain, however, Elder’s due process claims

pertaining to the sufficiency of evidence and access to witnesses, and therefore

REVERSE the summary judgment awarded by the district court to Defendants on this

count and REMAND with directions that summary judgment be entered in Elder’s

favor. As to his due process claim arising from the adequacy of the assistance he

received, we VACATE the judgment and REMAND the cause for trial. And finally, as

to Elder’s Eighth Amendment claim, we also VACATE the judgment entered in

Defendants’ favor on their motion to dismiss and REMAND the cause with instructions

that Elder be allowed to file an amended complaint and that further proceedings be

conducted consistent with this Opinion.

BACKGROUND

I. Factual background

The following account is drawn from the record before the district court when it

adjudicated defendants’ motion for summary judgment. The facts as described here are

not disputed by the parties except as otherwise noted. We look only to Elder’s

4 complaint, however, when reviewing the district court’s Rule 12(b)(6) dismissal of

Elder’s Eighth Amendment claim. See infra, Part VI.

A. The fire, the investigation, and the misbehavior report

Jarvis Elder was incarcerated at Attica Correctional Facility in 2009, after his New

York conviction for burglary. On September 1, 2012, while he was out of his cell for his

afternoon meal, a fire was set in his cell, destroying many of his personal effects. Prison

officials undertook to investigate the cause of the fire, placing Elder on “keep lock” (that

is, confined in another cell and not permitted to travel outside his cell without physical

restraints, see Murray v. McGinnis,

(2d Cir. 2003)) in the meantime.

On September 4, Corrections Sergeant John McCarthy learned (from whom is not

clear) that Elder’s cell had been set aflame and received “reliable confidential

information” (in his later words) that another inmate, Reginald Lawrence, was involved

in “possible drug activity as well as the arson of Inmate Elder’s cell.” App’x 297.

McCarthy then searched Lawrence’s cell. There, he found a list of addresses, a list of

phone numbers, and an inmate account disbursement form that had been completed in

Elder’s name. McCarthy then turned to interviewing Elder, who claimed ownership of

the three items that turned up in Lawrence’s cell. Elder also told McCarthy that he

(Elder) had filled out the disbursement form and had done so in connection with a

withdrawal from his own account.

On September 10, McCarthy filed his investigation report. It chronicled the

September 4 start of his investigative effort—not with regard to the arson, but with

regard to the source of possibly forged disbursement forms, which the prison had relied

on to pay out $630 in withdrawals from Lawrence’s account. To execute a withdrawal

from an inmate account, the inmate who holds the account submits a completed, signed

disbursement form to a designated officer. The officer then verifies the inmate’s name

5 and identification number and countersigns the form to authorize the disbursement,

which in this case was generally made by check made payable to the inmate or the

inmate’s payee.

McCarthy concluded that the handwriting that appeared on the disbursement

form found in Lawrence’s cell and claimed by Elder as his own matched that appearing

on the seven suspect disbursement forms completed in Lawrence’s name (the latter

forms, the “Lawrence forms” or the “Lawrence disbursement forms”). McCarthy wrote

that he believed Elder had forged the Lawrence forms, stating that “the handwriting on

Inmate Elder’s personal 2706 form matches all of the 2706 forms with Inmate

Lawrence’s name and number on it . . . therefore, it is my belief that Inmate Elder

forged all the 2706 forms . . . .” App’x 298.

Elder received a copy of McCarthy’s report on September 11. He remained in

keep lock until September 14, when his disciplinary hearing began. So confined, Elder

was unable to investigate the charges on his own behalf. In these circumstances,

DOCCS regulations entitled Elder to receive a prison officer’s assistance in investigating

the charge and preparing his defense to the disciplinary proceedings. See 7 N.Y.C.R.R.

251-4.1(a)(4). These regulations provide that the assistant’s role is “to speak with the

inmate charged, to explain the charges to the inmate, interview witnesses and to report

the results of his efforts to the inmate.” Id. 251-4.2. An inmate may request that an

assistant “obtain[] documentary evidence or written statements which may be

necessary.” Id. Elder identified three possible assistants from a list provided him. He

was assigned Defendant Trevor MacIntyre.

On September 13, MacIntyre visited Elder in his keep lock cell to discuss what

assistance Elder needed. They agree that, in that conversation, Elder denied the forgery

and theft charges brought against him, but otherwise, their accounts differ. According

6 to Elder, he asked McIntyre to collect documents, interview certain witnesses, and

arrange for those witnesses to be present at his disciplinary hearing. He further

requested that MacIntyre provide him copies of the Lawrence disbursement forms at

issue, as well as of “Chapter V,” as the DOCCS regulations governing disciplinary

proceedings are known. Elder also avers that he asked MacIntyre to conduct several

interviews: first, of McCarthy, the author of the investigative report; second, of

prisonmate Reginald Lawrence; third, of a handwriting expert; and fourth, of the

officers who countersigned the Lawrence disbursement forms—the forms that Elder

was accused of forging.

On a prison “Assistant Form” dated September 13 (the day he interviewed

Elder), however, MacIntyre recorded only that Elder requested that Lawrence be

interviewed; that McCarthy be present at the hearing; a handwriting specialist; the

“directive on forgery”; and that the “officers who signed the disbursement forms be

present at the hearing.” App’x 43. In particular, MacIntyre maintains that Elder did not

request copies of the Lawrence disbursement forms themselves or of Chapter V. He

asserts further that, although Elder asked that the officers who countersigned the forms

be made available for questioning at the hearing, Elder did not ask MacIntyre to

interview them in advance. Elder countersigned the assistant form that McIntyre

prepared, apparently when their meeting ended, at approximately 1 pm on September

13. Id.

After meeting with Elder, MacIntyre interviewed Lawrence. MacIntyre later

reported to Elder that Lawrence refused to testify, and that refusal, too, is noted on the

Assistant Form. Next, according to MacIntyre, he searched for a “directive on forgery”

and determined that one did not exist, recording that information on the Assistant

Form. App’x 300. MacIntyre also said that he relayed Elder’s requests for witnesses,

including his specific request that the officers who countersigned the Lawrence

7 disbursement forms appear at his hearing. Elder disputes MacIntyre’s account: he

testified during his deposition that MacIntyre told him that he would have to wait until

the hearing to see the documents he had requested and that Elder would have to wait

until the hearing to receive further assistance.

B. The disciplinary hearing and disposition

The disciplinary hearing began on September 14, with Defendant Ken Kling, a

vocational supervisor, presiding. Kling opened the hearing by reviewing the list of

witnesses Elder had requested appear, including Lawrence and the still-unidentified

officers who signed the Lawrence disbursement forms. Kling explained that he could

not compel Lawrence to testify; that McCarthy was not available to attend the hearing

that day; and that Kling needed more information to enable him to identify the

countersigning officer witnesses. Kling then read McCarthy’s report into the record.

Elder pleaded not guilty to the charges brought: forgery and theft. (MacIntyre, Elder’s

assistant, apparently did not attend the hearing.)

The hearing transcript reflects that Kling showed the Lawrence disbursement

forms in some way, stating, “that is the written evidence that I am showing you.” App’x

318. Elder disputes that he was able to meaningfully review this evidence: he later

testified that Kling “flipp[ed] through” the forms and displayed them to him from

where Kling was seated, but that Kling did not “plac[e] them in [his] hand and let [him]

look at [them].” App’x 266.

Elder explained to Kling that identifying the officers who had signed the

disbursement forms was crucial to his defense because “they have to check ID,”

implying that they should be able to identify who signed or submitted the Lawrence

forms and could potentially exonerate Elder. App’x 318. Kling responded that he

understood and that he would “see what [he could] do,” App’x 319, but that he could

8 not read the officers’ scrawled signatures. Elder complained that he had never received

copies of the written evidence and thus lacked specific information about the

accusations against him, including any relevant “dates and times.” Id. Kling then

adjourned the hearing.

The hearing reconvened a week later, on September 21. Kling reviewed the

charges and Elder’s “not guilty” plea with him before inviting Elder to make a

statement. App’x 319. Elder accepted the invitation. He denied stealing anything from

Lawrence and denied forging the disbursement forms. He argued that he could not

have forged the forms because “it is a policy . . . [to] check inmates[’] name and ID

number prior to . . . taking disbursement forms.” App’x 320. Elder explained that he

and Lawrence knew each other, and that he had previously “helped [Lawrence] out”

with matters concerning money and artwork or art supplies. App’x 319. Elder stated

that he was concerned that Lawrence had somehow ended up with Elder’s address and

phone lists and suggested that Lawrence might have framed him and “pull[ed] a scam

to get money.” App’x 320.

Kling called McCarthy as a witness. He first asked McCarthy “what [led him] to

believe that Inmate Elder was the person who committed [the] forgery.” App’x 321.

McCarthy responded that, when he searched Lawrence’s cell on or about September 4,

he found documents bearing Elder’s handwriting and that (in his view) the handwriting

on those documents resembled that appearing on the purportedly forged forms. Kling

inquired whether McCarthy could identify the officers who had approved and signed

the disbursement forms. McCarthy replied that he could not. Kling added that he

himself had asked about the identity of the signatory officers “in the block with

different officers,” but had no success. App’x 322.

9 After McCarthy testified and Elder had an opportunity to have cross-

examination questions put to him, Kling closed the hearing and prepared a brief written

disposition, which he read into the record a few minutes later. In the written

disposition, Kling stated that he found Elder guilty of both forgery and stealing. He

imposed a penalty on Elder of six months’ confinement in the SHU, accompanied by

loss of recreation, package receipt, and commissary privileges. He also ordered that

Elder pay Lawrence $630 in restitution. Describing the evidence on which he relied,

Kling wrote in toto:

In this case I relied upon the verbal testimony given by Sgt. McCarthy in addition to the written misbehavior report. The visual evidence of the signature was compelling in the similarities. It would appear to me that some officers may have been lax in verifying I.D. I also felt that no credible defense was given.

App’x 329.

In an affidavit later submitted in the district court proceedings, Kling expanded

on this description, and swore that the hearing record on which he relied included

several additional documents: the purportedly forged Lawrence disbursement forms

themselves; Elder’s own disbursement form, found in Lawrence’s cell; Elder’s address

and phone lists; Elder’s mail receipts; and a check endorsed by Elder. The three

Lawrence disbursement forms bore handwritten designations of “Reginald Lawerence

[sic],”as payor. All were initialed or countersigned by unidentified corrections officers

and all were paid out in the roughly three-week period from July 31 through August 24,

2012.

C. Administrative appeals and Article 78 proceeding

In accordance with prison protocol, Elder appealed Kling’s decision to Defendant

Mark Bradt, Attica’s Superintendent, and separately to Albert Prack, state-wide DOCCS

10 Director of Special Housing/Inmate Disciplinary Programs. Both Prack and Bradt

affirmed Kling’s decision.

Elder, acting pro se, then challenged the evidentiary sufficiency of Kling’s

decision in an Article 78 proceeding in New York Supreme Court. Eventually, the

Appellate Division vindicated Elder’s claim, ruling that the prison’s disciplinary

decision was not supported by substantial evidence. See Elder,

. The

court’s decision rested in part on the observation that the misbehavior report and

evidence presented at the hearing included no statement “that [McCarthy] showed

[Lawrence] the disbursement forms or that [Lawrence] claimed that it was not his

signature on the forms.”

. The court also criticized Kling for his failure, apart

from speaking to a few unidentified “officers in the block,” to make meaningful efforts

to identify the officers who signed the Lawrence disbursement forms and whom Elder

had requested attend the hearing.

The court further found that Elder “was denied

meaningful employee assistance and was prejudiced by the inadequate assistance he

received,” pointing to the absence of evidence that MacIntyre made any efforts “to

ascertain the names of the correction officers who signed the disbursement forms” or

“to secure their presence at the hearing.”

Thus, the court concluded, “it [could not]

be said that reasonable efforts were made to locate [Elder’s] witnesses.”

(internal

quotation marks omitted). On this basis, the court annulled Kling’s decision and

ordered that references to the matter be expunged from Elder’s record.

. In

2014, when the Appellate Division’s decision issued, however, Elder had long since

completed his six-month sentence in the SHU.

II. District court proceedings

On May 1, 2014, Elder filed this action pro se under

, naming

McCarthy, MacIntyre, Kling, Bradt, and Prack as defendants. Asserting Eighth and

11 Fourteenth Amendment violations by the state officials, he sought compensatory and

punitive damages and attorneys’ fees.

As relevant to this appeal, the operative complaint alleged that the prison’s

disciplinary proceedings violated his due process rights in several ways. Elder charged

that (1) Sergeant McCarthy filed a false misbehavior report; (2) Officer MacIntyre

provided inadequate assistance by failing to interview the witnesses and procure the

documents that Elder requested; (3) Sergeant McCarthy and Hearing Officer Kling gave

him inadequate notice of the charges against him because the misbehavior report lacked

specificity and he did not have an adequate opportunity to review the Lawrence

disbursement forms; (4) Hearing Officer Kling failed to provide Elder the documents

Elder sought and did not call the officer witnesses he requested; (5) Hearing Officer

Kling’s disposition of the charges against Elder was not based on adequate or reliable

evidence; and (6) in the administrative appeals process, Superintendent Bradt and

Director Prack culpably failed to correct these unconstitutional procedural failures.

With respect to his Eighth Amendment claim that he was subjected to cruel and

unusual punishment, Elder alleged that, while in the SHU, he was confined in a cell

with one other person for twenty-three hours a day, allowed to exercise very little, and

that he received “barely any cleaning supplies,” which made “keeping the cell clean

difficult and almost impossible.” App’x 30-31, ¶¶ 39-40. He stated that he was allowed

to shower only two to three times a week and had to step in and out of the shower to

allow any privacy while his cellmate defecated nearby. He further alleged that he was

seriously deprived of sleep while in the SHU because the lights in his cell were never

turned off. As a result of these conditions, he alleged, he suffered from severe anxiety

and depression.

12 In response to Elder’s discovery requests, Defendants produced the logbook for

A Block—the cell block in Attica where Elder and Lawrence lived—and staffing charts

for the dates shown on the Lawrence disbursement forms. The staffing charts list the

officers assigned to each post for each shift; the logbook records daily activity in the A

Block and lists the officers who were present for each shift. 1

Some evidence produced by Defendants cast doubt on Elder’s guilt of the

charges against him. In particular, in an August 2012 letter to a corrections officer,

Inmate Accounts employee Ann Lopez voiced suspicions that Lawrence’s complaint

about unauthorized withdrawals was a fraud. She wrote, “I think this inmate

[Lawrence] may be trying to scam us,” and explained that she had returned two of the

purportedly forged disbursement forms to Lawrence, telling him that they had been

improperly submitted in a single envelope two to three weeks before the date of her

letter, and said that “[h]e didn’t question it then.” App’x 359. And although “[t]he

disbursement[] [forms] he claims tipped him off” showed an incomplete address,

Lawrence listed his complete address in his written complaint about fraudulent

withdrawals that he submitted to prison authorities.

In addition, Defendants

produced contemporaneous letters from Lawrence to Elder’s girlfriend, confessing

Lawrence’s romantic interest in her and urging her to leave Elder for him. In one of

those letters, Lawrence recounted that Elder “got caught sneaking” money from

Lawrence’s account, and said that Lawrence had “dealt with” Elder and “look[ed] out

for” Elder because Elder was “broke.” App’x 376.

1As we discuss further below, the parties now dispute whether this information, if timely produced, could have enabled Kling to call as witnesses at the disciplinary hearing those individuals who initialed the Lawrence forms.

13 Some evidence produced by Defendants during these proceedings cut sharply

against Elder, however. In particular, one check written on Lawrence’s account was

endorsed by two individuals: Chris Brinson (the payee listed on the Lawrence

disbursement forms), and a certain Winifred Pike. Elder acknowledged at his

deposition that Winifred Pike was his mother and that he knew “a few Chris Brinsons.”

App’x 261, 269.

By Decision and Order dated September 9, 2015, the district court dismissed

Elder’s Eighth Amendment claim under Rule 12(b)(6). Without reaching the question

whether the complaint’s allegations of unsanitary conditions were a sufficient basis for

an Eighth Amendment claim and affording no opportunity to amend in response to the

ruling, the court determined that the complaint failed to include “plausible allegations

that any Defendant had the required knowledge of, and deliberate indifference to, his

particular living conditions.” Elder v. McCarthy, No. 14-CV-6216,

, at *8

(W.D.N.Y. Sept. 9, 2015).

On June 23, 2017, the district court issued a final order denying Elder’s summary

judgment motion on the due process counts, granting Defendants’ cross-motion, and

dismissing the lawsuit based on the court’s conclusion that no material facts were

subject to genuine dispute and that no Defendant had violated Elder’s due process

rights. The court interpreted Elder’s inadequate notice claim as faulting McCarthy’s

misbehavior report for its failure to “comply with procedural requirements imposed by

New York State regulations.” Elder v. McCarthy, No. 14-CV-6216,

, at *7

n.24 (W.D.N.Y. June 23, 2017). Having done so, the court held that a “violation of such

procedures does not amount to a federal due process violation.”

As to Elder’s

inadequate assistance claim, the court acknowledged that MacIntyre “admittedly did

very little for [Elder]” as Elder’s assistant, but concluded nonetheless that “no

constitutional violation occurred,” either because the witnesses and documents Elder

14 had asked for were “unavailable,” or because any shortcoming was harmless error.

. As to his claims against Hearing Officer Kling, the court concluded that the

disciplinary decision was supported by “reliable evidence”; that Kling’s failure to

consult the prison records to identify the officers who had signed the disbursement

forms did not violate due process; and that due process did not require Kling to give

Elder copies of the disbursement forms, and in any event, any error in that regard, too,

was harmless.

.

Relying on these determinations, the district court also dismissed the claims

against the remaining Defendants. The court dismissed Elder’s claim against McCarthy

for filing a false misbehavior report, reasoning that at his disciplinary hearing Elder

received all the process he was due whether the report was false or not. Finally, the

court dismissed the claims against Bradt and Prack as derivative of the position that the

disciplinary proceedings against Elder were tainted by due process violations—a

position that the court had rejected as to the other Defendants.

DISCUSSION

We review de novo an order granting summary judgment under Rule 56,

construing all record evidence in the light most favorable to the non-moving party.

Willey v. Kirkpatrick,

(2d Cir. 2015). We will affirm the grant of summary

judgment only if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We also review de novo

the district court’s grant of a motion to dismiss under Rule 12(b)(6). Kelleher v. Fred A.

Cook, Inc.,

(2d Cir. 2019).

For the reasons set forth below, we conclude that the substance of Kling’s

disciplinary determination regarding Elder was not supported by “some reliable

evidence,” under the standard that we established in Sira ,

, as needed to

15 satisfy constitutional due process requirements. Although we conclude that defendants

gave Elder adequate notice of the charges against him, certain other procedural lapses

identified by Elder run afoul of established law on due process claims that arise in the

context of prisoner disciplinary proceedings. In particular, Defendants failed to consult

readily available prison records to identify the officers who, critically, approved the

allegedly forged disbursement forms and whom Elder requested be called as witnesses.

Even if curing these flaws might not have exonerated Elder—and we cannot be sure

that it would—these elements were essential to providing Elder the process he was due.

In addition, the district court exceeded the bounds of its permissible discretion by

dismissing Elder’s Eighth Amendment claim without providing him a meaningful

opportunity to amend his complaint. Accordingly, and as further explained below, we

vacate the district court’s judgment in part and remand for further proceedings

consistent with this Opinion.

I. Kling’s failure to produce witnesses

Elder asserts that the hearing officer, Kenneth Kling, denied him due process by

failing to make reasonable efforts to identify the witnesses Elder sought to call. Elder

highlights Kling’s failure to consult the A-Block logbook 2 and facility staffing charts to

identify the officers who were on duty when one or more of them approved the

Lawrence disbursement forms. The district court rejected this claim, reasoning that

although Elder contends that Kling “should have gone further, and examined the

facility log books, his failure to do so did not violate due process.” Elder,

, at *11. On appeal, Kling argues that there were too many potential signatories

2 Elder and Lawrence were both housed in the A-Block section of the Attica facility.

16 to review, nor could Kling have known, as a vocational supervisor and not a corrections

officer, about the existence of these records at the time of the hearing.

On the basis of the uncontested facts in the record, we agree with Elder that he

was denied due process by Kling’s failure. As further discussed below, we conclude

that Elder is entitled to summary judgment against Kling on this issue.

We step back, first, and recall that a sentence requiring an inmate to serve time in

the SHU represents a substantial loss of liberty even for a lawfully imprisoned person.

As noted above, the confinement is much more restrictive and other conditions, such as

unrelenting light and lack of exercise, are harsh. Accordingly, our prior rulings have left

no room to doubt that “certain due process protections must be observed before an

inmate may be subject to confinement in the SHU.” Smith v. Fischer,

(2d Cir. 2015) (alterations and internal quotation marks omitted); accord Wolff v.

McDonnell,

(1974). These protections include providing the inmate

with “advance written notice of the charges; a fair and impartial hearing officer; a

reasonable opportunity to call witnesses and present documentary evidence; and a

written statement of the disposition, including supporting facts and reasons for the

action taken.” Smith,

(internal quotation omitted).

As the Supreme Court has observed, “[c]hief among the[se] due process minima

. . . [i]s the right of an inmate to call and present witnesses . . . in his defense before the

disciplinary board.” Ponte v. Real,

(1985). An inmate’s request to call

witnesses may be denied due to “irrelevance or lack of necessity,” or where “granting

the request would be unduly hazardous to institutional safety or correctional goals.”

Kingsley v. Bureau of Prisons,

(2d Cir. 1991) (internal quotation marks

omitted). The burden to defend such a denial, however, “is not upon the inmate to

17 prove the official’s conduct was arbitrary and capricious, but upon the official to prove

the rationality of the position.”

.

Our decision in Kingsley controls the outcome on this issue. In Kingsley, an inmate

was accused of refusing to provide prison authorities a urine sample for a drug test.

Defending this charge, the inmate swore that he did not in fact refuse but was merely

nervous and could not urinate promptly when directed to do so. He requested that the

hearing officer call as witnesses other inmates who had participated in the drug test that

day and who might corroborate his explanation. The hearing officer declined to do so

on the basis that the accused inmate “could not identify [the witnesses] by name.”

. He then adjudged the inmate guilty and sentenced the inmate to the SHU as

punishment.

On appeal from the district court’s dismissal of the inmate’s lawsuit, we

concluded that his due process rights had been violated. The record showed that the

prison staff had a list of the 36 inmates who had been designated for the test at the

relevant time.

We held accordingly that, while “prison officials can normally insist

that a prisoner identify the names of his prospective witnesses, it was arbitrary to insist

on this requirement here where the need for the witnesses was especially compelling,

their identities were readily available to the prison officials, and [the inmate’s] inability

to identify them by name was understandable.”

(footnote omitted).

Here, it was similarly unreasonable for Kling to expect Elder to be able to name

the relevant officers. If he in fact did not commit the forgery and submit the

disbursement forms in question, he would have had no way of knowing which officers

countersigned them. Moreover, during the district court proceedings, none disputed

that the information identifying these officers was “readily available” (as we put it in

Kingsley) to prison officials through the A-Block logbook and facility staffing charts.

18 Kling’s effort to identify the relevant officers was patently insufficient. He asserts

that he spoke to five officers in Elder’s cell block and looked for clearer copies of the

disbursement forms. Defendants offer no evidence, however, concerning which officers

Kling spoke to, how he selected them, what he asked them, or whether he showed them

the Lawrence forms. Further, looking for clearer copies of the forms was very likely to

be ineffective: The problem was not that the signatures, and in some instances, the mere

initials, were obscured or too faint to make out; rather, it was that they were

unintelligible to a stranger because they were scribbled, as many signatures are. But

they should have been readily recognized by the signatory.

Now, for the first time on appeal, Defendants assert that Elder failed to prove

“that the requested officers could have been easily identified by using the staffing

records.” Appellees’ Br. 31. Because this argument was not raised before the district

court, we treat it as waived. See Millea v. Metro-North R.R.,

(2d Cir.

2011). To the extent it raises new factual questions, it is prudent to do so. But even were

we to assume that the argument was not waived, it would fail on the merits.

To begin with, under Kingsley, the burden falls on Kling “to prove the rationality

of” declining to take the obvious step of consulting the staffing records to identify

Elder’s requested witnesses. Kingsley,

. Kling did not even attempt to meet

this burden, and instead rested on his argument—which we have now rejected—that

the meager and apparently casual efforts he did make were sufficient to satisfy due

process obligations on this critical issue.

Moreover, nothing on the face of the disbursement forms, the hearing transcript,

and the staffing records suggests that the countersigning officers were, in fact, not

readily identifiable using those records. As evident from the forms and the transcript of

Elder’s disciplinary hearing, the forms were approved and stamped by “hall captains,”

19 App’x 307, 309-12, 322-24, two of whom were on duty in any given day. The names of

the designated hall captains for a particular day are listed in both the A-Block logbook

and on the staff planning grid. See App’x 164-84, 201-213. (Hall captains are designated

“H.C.” in the logbook and “A-Block #1” in the planning grid.) Although the signatures

or initials on the disbursement forms may have been illegible, the date on which each

form was signed was plainly visible. See App’x 307-12. Accordingly, without accounting

for instances in which a single hall captain approved more than one form, for each

disbursement form at issue it appears that Kling would have had to interview at most

two officers assigned to duty in that place and on that date to determine who had

approved the form. This, he did not do, as the record establishes without any genuine

dispute. 3

II. The quality of the assistance provided by MacIntyre

As discussed, the parties dispute what exactly Elder asked his corrections officer

assistant MacIntyre to do for him to help Elder prepare for the hearing while Elder was

confined in keep lock. As the district court acknowledged, on a motion for summary

judgment, the court was required to credit the testimony of Elder, as the non-moving

party. Elder,

, at *5.

According to Elder, he asked MacIntyre to interview the officers who had

approved the disbursement forms in advance of the disciplinary hearing. Elder testified

in his deposition that he also asked MacIntyre to obtain copies of the allegedly forged

forms and of “Chapter V,” the regulations governing the hearing. We conclude that

3One might also have expected MacIntyre, as the individual charged with the relevant investigation, to pursue this reasonable possibility. We discuss the import of his failure to do so below, separately from Kling’s failure.

20 MacIntyre’s reported failure to carry out Elder’s requests, if proven, would constitute a

due process violation. Elder is entitled to a trial to determine what assistance he in fact

requested and whether MacIntyre failed to provide him that assistance.

A. Failure to identify and interview witnesses

Due process principles require prison authorities “to provide assistance to an

inmate in marshaling evidence and presenting a defense when he is faced with

disciplinary charges.” Eng v. Coughlin,

(2d Cir. 1988). When the inmate

is confined before the hearing, “the duty of assistance is greater because the inmate’s

ability to help himself is reduced.”

Such required assistance includes “gathering

evidence, obtaining documents and relevant tapes, and interviewing witnesses.”

.

This constitutional obligation is violated by a “failure to . . . interview an

inmate’s requested witnesses without assigning a valid reason.” Fox v. Coughlin,

(2d Cir. 1990). As with the failure to make witnesses available at a

disciplinary hearing, “[t]he burden is not upon the inmate to prove the [assistant’s]

conduct was arbitrary and capricious, but upon the [assistant] to prove the rationality of

his position.”

Moreover, “the assistance must be provided in good faith and in the

best interests of the inmate.” Eng,

. For instance, “an assistant . . . who is

requested to interview a group of prisoners too numerous to interview must attempt to

determine independently who the most relevant witnesses might be and to interview

them.”

Although we have not “define[d] the assigned assistant’s precise role and the

contours of the assistant’s obligations,” we have noted that “[a]t a minimum, an

assistant should perform the investigatory tasks which the inmate, were he able, could

perform for himself.” Id.; see also Silva v. Casey,

(2d Cir. 1993) (“[A]n

21 assistant must be assigned to the inmate to act as his surrogate—to do what the inmate

would have done were he able.”). The assistant has no duty, however, “to go beyond

the specific instructions of the inmate”; otherwise, “he would then be acting as counsel

in a prison disciplinary proceeding, assistance to which a prisoner is not entitled.” Silva,

.

Considering how easily MacIntyre could have identified Elder’s requested

witnesses by consulting prison records (and taking as true Elder’s account of the

relevant facts, as we must at this stage of the proceedings), we think MacIntyre could be

shown to have fallen short of meeting his constitutional obligation to assist Elder “in

good faith and in the best interests of the inmate.” Eng,

.

The district court granted summary judgment on this issue to MacIntyre, citing

Silva for the proposition that an assistant need do only “what the inmate would have

done were he able” and not confined pending the hearing, and concluding that the

undisputed facts show that MacIntyre met that standard. Silva,

. In

particular, the court concluded that MacIntyre had no obligation to check the prison

staffing records because “it cannot be plausibly maintained that facility rules would

have permitted Plaintiff, an inmate, to inspect the corrections officers’ log books in

order to prepare for his hearing.” Elder,

, at *9.

The court erred by applying this standard. In Silva, we held only that an assistant

has “no constitutional duty to go beyond the bounds of [the inmate’s] specific

instructions” and rejected the inmate’s argument that his assistant should have

interviewed witnesses the inmate never asked him to interview.

. We set

no limit on the types of specific tasks an assistant may be required to perform upon an

inmate’s request. In fact, in Eng, a case whose principles we reaffirmed in Silva, we

declined to define a constitutional maximum and referred to the tasks an inmate, “were

22 he able, could perform for himself,” as a constitutional “minimum.”

.

Similarly, in Ayers v. Ryan,

(2d Cir. 1998), we held that an inmate did not

receive the process he was due when his appointed assistant failed to interview two

witnesses in a facility from which the plaintiff inmate had been transferred, including

one witness whom the plaintiff identified only by cell number,

. We so held

notwithstanding the observation that the plaintiff inmate would likely not have been

permitted to do so himself, by regulation, and that it would have been difficult, if not

impossible, for the inmate to do himself as a practical matter.

In sum, although we have not traced the outer contours of an inmate assistant’s

constitutional duties, we have previously held that assistants are constitutionally

obligated to perform tasks far more burdensome than, as here, consulting readily

available prison records for a handful of names even if those tasks may not be

permitted to the inmate. See, e.g., id.; Eng,

.

B. Failure to provide Elder with requested documents

Elder avers that he asked MacIntyre for copies of the allegedly forged

disbursement forms and the Chapter V regulations, and that MacIntyre failed to

procure these documents but gave no reason for his failure. Again taking Elder’s

version of the facts to be true, we conclude that MacIntyre’s failure to procure Elder’s

requested documents was similarly a failure to assist him “in good faith and in [his]

best interests.” Eng,

.

The district court recognized that a factual dispute existed, but nonetheless

granted summary judgment to MacIntyre as to this claim, even assuming that Elder

requested these documents. The district court reasoned that MacIntyre’s failure to

obtain them was “harmless error” because, at the hearing, Elder was able to “view, if

not hold” the disbursement forms, and in any case, MacIntyre’s failure to provide the

23 requested documents could not have affected the outcome of the hearing. Elder,

, at *9.

The district court erred. Even assuming that the deficiency could have been

cured at the hearing, under Elder’s version of events, he was not given sufficient

opportunity to review the disbursement forms at that time, because Kling kept them

“by his side” and merely “flipped through them.” App’x 266. Further, as discussed

more fully below, infra Part IV, the evidence presented at the hearing was insufficient to

support the conclusion that any procedural violations caused Elder no cognizable harm.

Elder was entitled to pursue this claim as to any factual differences and to obtain at

least nominal damages should he prevail.

III. Adequacy of notice

Elder contends that he was denied due process because he did not receive

adequate notice of the charges made against him and asks this Court to enter summary

judgment in his favor on this claim. The district court did not address whether the

misbehavior report contained sufficient detail to comport with due process. Instead, the

court noted Elder’s citation of 7 N.Y.C.R.R. 251-3.1—a New York state regulation

requiring prison misbehavior reports to include the incident date, among other facts—

and concluded that “violation of such procedures does not amount to a federal due

process violation.” Elder,

, at *7 n.24. Defendants, for their part, argue

that the report was adequately specific to comport with due process demands. They

contend that “the inclusion of ‘all facts relevant to [the] date’ in a misbehavior report is

not necessary so long as there is sufficient information to allow the inmate to identify

the conduct at issue.” Appellees’ Br. 35 (quoting Sira,

) (brackets ours).

In a prison disciplinary proceeding, “[d]ue process requires that prison officials

give an accused inmate written notice of the charges against him twenty-four hours

24 prior to conducting a disciplinary hearing.” Sira,

. Critically, our

precedents have taken a functional approach to assessing the adequacy of notice in this

context: we have held that notice is constitutionally adequate when it is sufficiently

“specific as to the misconduct with which the inmate is charged to inform the inmate of

what he is accused of doing so that he can prepare a defense to those charges and not be

made to explain away vague charges set out in a misbehavior report.”

(quoting

Taylor v. Rodriguez,

, 192–93 (2d Cir. 2001) (internal quotation marks

omitted)). Accordingly, to satisfy due process concerns, the notice given need not

“painstakingly detail[] all facts relevant to the date, place, and manner of charged

inmate misconduct”; it must simply permit a “reasonable person” to “understand what

conduct is at issue so that he may identify relevant evidence and present a defense.” Id.

at 72.

In advance of his disciplinary hearing, Elder received a two-page misbehavior

report form prepared by McCarthy. App’x 297-98. The report stated that the total

amount of larcenous withdrawals was $630. Id. The report also (1) cited the rules that

Elder was charged with violating; (2) described the alleged misconduct, that is, forging

disbursement forms over an unspecified course of time and using them to steal from

another inmate’s account; and (3) identified the other inmate (Lawrence). This

information was sufficient to advise Elder of what he was accused of doing—forging

and stealing. As the record demonstrates, the misbehavior report provided enough

material for Elder to attempt to prepare a defense, by asking MacIntyre to provide

copies of the forms at issue and to identify relevant evidence. The questions Elder posed

to Kling and McCarthy at the hearing further make clear that he understood the charges

against him and had considered possible defenses. See, e.g., App’x 57 (asking McCarthy

whether he qualified as a “handwriting specialist” and asking McCarthy whether it is

25 Attica’s policy for correction officers to verify inmate ID before accepting disbursement

forms). Under our precedents, Elder thus received adequate notice.

Although Elder was not able to examine the relevant disbursement forms until

his hearing, we are aware of nothing in the record to suggest that this limitation

resulted from any information missing from the misbehavior report; rather, as

discussed above, it was a product of MacIntyre’s failure to obtain and provide the

relevant forms. That Elder was ultimately unable to mount an adequate defense is

attributable, rather, to a distinct due process violation: the allegedly inadequate

assistance provided him by MacIntyre. We therefore affirm the district court’s dismissal

of Elder’s due process claim insofar as it is based on a theory of inadequate notice.

IV. Sufficiency of the evidence

Elder asserts, finally, that the evidence presented to Hearing Officer Kling was

insufficient to support his conviction for forgery and stealing. In rendering his oral

decision, Kling identified that the evidence in the hearing record consisted of the

McCarthy report; the seven Lawrence disbursement forms; a cashed check drawn from

Lawrence’s account showing the same payee, amount, and number as one of the

Lawrence disbursement forms; a disbursement form completed by Elder; and

McCarthy’s testimony. In his written disposition, under the heading “statement of

evidence relied upon,” Kling wrote that he “relied upon the verbal testimony given by

Sgt. McCarthy in addition to the written misbehavior report.” App’x 65. He added that

“[t]he visual evidence of the signature was compelling in the similarities.” Id.

The district court found, and Defendants assert, that McCarthy and Kling’s

determination that the handwriting on the Lawrence forms matched Elder’s was

sufficient to support the conviction. In the circumstances presented, we are unable to

agree.

26 The Supreme Court instructed in 1985 that due process prohibits disciplinary

action affecting an inmate’s liberty interest without “some evidence” of guilt.

Superintendent v. Hill,

(1985); Gaston v. Coughlin,

(2d

Cir. 2001). A reviewing court’s application of this standard “does not require

examination of the entire record, independent assessment of the credibility of witnesses,

or weighing of the evidence.” Hill,

. Rather, the court considers “whether

there is any evidence in the record that could support the conclusion reached by the

disciplinary board.”

(emphasis added).

Read at its most expansive, the Court’s 1985 articulation suggests a low standard

indeed. In this Circuit, however, we have not “construed the phrase ‘any evidence’

literally.” Luna v. Pico,

(2d Cir. 2004). Rather, we have required that

such disciplinary determinations be supported by some “reliable evidence” of guilt.

(emphasis added) (internal quotation marks omitted); accord Sira,

. “Due

process does not permit a hearing officer simply to ratify the bald conclusions of others;

it requires some inquiry to determine whether the totality of facts and circumstances

reasonably supports the proffered conclusion.” Sira,

.

Elder’s sufficiency challenge “presents an issue of law subject to our plenary

review.”

. On such review, we conclude that Kling’s findings that Elder was

guilty of both forgery and theft were not supported by some reliable evidence. Luna,

. Although the record demonstrates that Kling inspected the Lawrence

disbursement forms and concluded that the handwriting on those forms was similar to

the handwriting on Elder’s documents, the entire proceeding rested on the

assumption—one unsupported by any direct evidence and supported by McCarthy’s

report only by inference—that forgery and theft had occurred. The hearing record

lacked any direct evidence that Lawrence had complained of theft or forgery, or that

money was withdrawn from Lawrence’s account against his will.

27 Further, the hearing record before Kling contained no samples of withdrawal

forms submitted by Lawrence in the past, or any reliable sample of Lawrence's

signature to suggest that the targeted forms were in fact forgeries. Thus, in the absence

of a reliable sample of Lawrence's signature on a withdrawal form, Elder was accused

of forgery based merely on the fact that the written signatures on the targeted forms

looked similar to his handwriting. This unusual aspect of the record persuades us that,

in the circumstances of this case, the evidence before Kling was insufficient to find Elder

guilty of theft and forgery.

In similar vein, in Elder’s state administrative proceeding, the Fourth

Department alluded to Lawrence’s silence as a factor supporting its determination.

Elder,

. As it pointed out in granting Elder’s Article 78 petition,

“there is no indication in the misbehavior report that the sergeant showed [Lawrence]

the disbursement forms or that [Lawrence] claimed that it was not his signature on the

forms. There likewise was no evidence to that effect presented at the hearing.”

. Bearing in mind the applicable sufficiency standard here, which we recognize is

more lenient than that imposed by New York law, we conclude that the evidence before

Kline was insufficient to find Elder guilty of theft and forgery. See Sira,

n.9. Elder is entitled to entry of summary judgment in his favor on this due process

ground.

V. Qualified Immunity

As now relevant to Elder’s due process claims, Defendants assert in the

alternative that, even if Defendants’ conduct violated due process, they are entitled to

qualified immunity from his claims. Defendants did not raise this argument at

summary judgment, however, except as to Superintendent Bradt.

28 The defense of qualified immunity “may be waived if, as here, the defendants

failed to move for summary judgment on this defense, even if, also as here, the

defendants asserted the defense in their answer.” Harris v. Miller,

(2d Cir.

2016). On this record, we conclude therefore that every Defendant except Bradt—and

MacIntyre—has waived qualified immunity as a defense. We perceive no risk of

manifest injustice. Defendants “proffer no reason for their failure to raise the arguments

below.” In re Nortel Networks Corp. Sec. Litig.,

(2d Cir. 2008) (internal

quotation marks omitted). Thus, the circumstances of this case appear not to “militate in

favor of an exercise of discretion” to address qualified immunity in this posture. Id

(internal quotation marks omitted). Because we remand Elder’s due process claim

against MacIntyre for inadequate assistance, however, and decide that it cannot be

resolved now as a matter of law, we conclude that MacIntyre did not waive his

qualified immunity defense.

When a plaintiff shows facts making out a violation of a constitutional right, a

defendant may establish the affirmative defense of qualified immunity by

demonstrating that (1) the right was not “clearly established” or (2) even if the right was

“clearly established,” “it was ‘objectively reasonable’ for the officer to believe the

conduct at issue was lawful.” Gonzalez v. City of Schenectady,

(2d Cir.

2013). The law of qualified immunity “does not require a case on point concerning the

exact permutation of facts that state actors confront in order to establish a clear standard

for their behavior.” Hancock v. County of Rensselaer,

(2d Cir. 2018). Below,

we examine the defense as it would apply to each defendant.

Kling: Failure to produce witnesses. We established in Kingsley that a hearing

officer is required to identify the witnesses an inmate seeks to call using “readily

available” prison records,

& n.6, even where the inmate cannot “identify

[the witnesses] by name,”

. Kling made a paltry effort to do so. Nor does he

29 argue that he was somehow reasonably ignorant that those records existed. In light of

our guidance in Kingsley, Kling’s ineffectual efforts to identify Elder’s requested

witnesses were not “objectively reasonable.” Kling is not entitled to qualified immunity.

MacIntyre: Inadequate assistance. Because Elder's claim against MacIntyre cannot

be resolved as a matter of law and remains to be adjudicated, we conclude that, on

remand, the status quo ante should be restored for both Elder and MacIntyre. Thus,

MacIntyre should not be penalized for failing to address this affirmative defense in

opposition to a motion that was (in relevant part) without merit; he may raise the

defense in future proceedings in the district court.

Kling and McCarthy: Insufficient notice. Because we affirm the district court’s

dismissal of Elder’s due process claim based on a theory of insufficient notice, we need

not address whether Kling and McCarthy are entitled to qualified immunity on this

claim.

The district court also dismissed claims against McCarthy, Bradt, and Prack

based on its rulings that the other Defendants hadn’t violated due process. As

discussed, Elder brings due process claims against McCarthy on allegations that he filed

a false misbehavior report, and against Bradt and Prack for summarily affirming Kling’s

ruling. The district court dismissed those claims based on its conclusion that Elder

ultimately received constitutionally adequate process. Because we conclude otherwise,

the claims should be allowed to proceed.

VI. Eighth Amendment Claim

The district court granted Defendants’ motion to dismiss Elder’s Eighth

Amendment claim. Although the court acknowledged that Elder’s allegations of the

SHU’s unsanitary conditions were his “most compelling” support for the claim, it

ultimately concluded that he had not plausibly alleged that any Defendant knew about

30 or was deliberately indifferent to those conditions. Elder,

, at *8. The

district court dismissed the claim without providing Elder an opportunity to seek leave

to amend: it did so by directing Defendants to answer only those parts of the amended

complaint that survived the motion to dismiss. Elder now argues that he should have

been given leave to amend. We agree.

Where a district court “cannot rule out any possibility, however unlikely it might

be, that an amended complaint would succeed in stating a claim,” a pro se complaint

“should not be dismissed without granting leave to amend at least once.” Shomo v. City

of New York,

(2d Cir. 2009) (alterations and internal quotation marks

omitted). Here, the district court could not have permissibly ruled out the possibility

that one of the Defendants knew about, or was deliberately indifferent to, the conditions

Elder endured in the SHU. For example, Defendant Prack might plausibly have had the

necessary scienter in light of his responsibilities as Director of Special Housing/Inmate

Disciplinary Programs. Alternatively, Elder might have amended his complaint to add

defendants who demonstrably knew of and were responsible for his living conditions.

Defendants now argue that the district court correctly denied leave to amend

because any amendment would have been futile. They claim that the unsanitary SHU

conditions as alleged could not support an Eighth Amendment claim—a conclusion that

the district court declined to reach—and that any claims raised now against new

defendants would be time-barred. These arguments would be better addressed by the

district court in the first instance, upon review of Elder’s actual allegations proffered in

an amended complaint and with the benefit of full briefing.

Accordingly, the district court is directed on remand to allow Elder to amend his

complaint to replead his Eighth Amendment claim.

31 CONCLUSION

To summarize:

1) We REVERSE the judgment of the district court as to Elder’s due process claim that Defendant Kling failed to produce witnesses and direct that summary judgment be entered in Elder’s favor;

2) We AFFIRM the judgment of the district court as to Elder’s due process claim that Defendants Kling and McCarthy failed to provide Elder with adequate notice of the charges against him in advance of his disciplinary hearing;

3) We REVERSE the judgment of the district court as to Elder’s due process claim that his disciplinary conviction was supported by “some” evidence and direct that summary judgment be entered in Elder’s favor;

4) We VACATE the judgment of the district court with respect to Elder’s due process claim against Defendant MacIntyre for inadequate assistance and REMAND the cause for trial;

5) We VACATE the judgment of the district court in Defendants’ favor as to Elder’s Eighth Amendment claim and REMAND the cause with instructions to allow Elder to file an amended complaint;

6) We VACATE the district court’s judgment that Defendants Kling, McCarthy, Bradt, and Prack are entitled to qualified immunity with respect to Elder’s due process claims and REMAND the cause with instructions to conduct further proceedings consistent with this reversal.

32 For the reasons set forth above, the judgment of the district court is AFFIRMED

in part, REVERSED in part, and VACATED in part as set forth above. The cause is

REMANDED with instructions to (1) enter judgment for Elder on his due process

claims based on sufficiency of the evidence and failure to produce witnesses; (2) grant

Elder leave to replead his Eighth Amendment claim; and (3) conduct further

proceedings consistent with this Opinion on all remaining claims.

33