Opinion
No. 08CA0069.
August 6, 2009. Rehearing Denied September 3, 2009.
Taubman, J., would grant.
Appeal from the District Court, Logan County, Michael K. Singer, J.
Russell M. Boles, Pro Se.
John W. Suthers, Attorney General, James X. Quinn, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.
In this C.R.C.P. 106(a)(4) action, plaintiff, Russell M. Boles, appeals the trial court's judgment affirming a prison disciplinary conviction. He asserts that he was denied due process at his disciplinary hearing, that the evidence supporting his conviction was insufficient, that the search of his cell was invalid, and that he was not provided discovery. We affirm.
I. Background
Plaintiff is an inmate in the custody of the Colorado Department of Corrections (DOC). Based on the discovery of two prescription pills in a dental floss container on a shelf in his assigned footlocker, plaintiff was charged with "Abuse of Medication," a Class II, Rule 14 violation of the DOC Code of Penal Discipline (COPD). After an administrative hearing before a DOC hearing officer, plaintiff was found to have violated the COPD. The administrative head later affirmed the decision of the hearing officer.
Plaintiff then brought this C.R.C.P. 106(a)(4) action seeking judicial review. The trial court affirmed the hearing officer's decision and plaintiff appealed.
II. Due Process
Plaintiff contends the trial court erred in determining the DOC hearing officer did not violate his Fourteenth Amendment right to due process. Specifically, he argues the hearing officer's prohibition on questioning the complaining officer about her alleged anti-semitism and her history of write-ups denied him due process in the disciplinary hearing. We disagree.
An inmate in a disciplinary hearing enjoys only the most basic due process rights. Wolff v. McDonnell, 418 U.S. 539, 563, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Washington v. Atherton, 6 P.3d 346, 347 (Colo.App. 2000). Procedures that are essential in criminal trials where the accused, if found guilty, may be subjected to the most serious deprivations, are not rights universally applicable to prison disciplinary proceedings. Wolff 418 U.S. at 566-67, 94 S.Ct. 2963; Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 812-13 (10th Cir. 2007).
Those due process rights available to inmates are (1) advance written notice of the claimed violation; (2) the ability to call witnesses and present documentary evidence when not unduly hazardous to institutional safety or correctional goals; and (3) a written statement of the evidence relied upon and the reasons for the disciplinary action taken. Wolff 418 U.S. at 563-66, 94 S.Ct. 2963.
The right to call witnesses does not include confrontation or cross-examination, due to the "inherent danger" such situations may pose, as well as "the availability of adequate bases of decision without them." Baxter v. Palmigiano, 425 U.S. 308, 322, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). The Supreme Court has admonished that "[m]andating confrontation and cross-examination, except where prison officials can justify their denial on one or more grounds that appeal to judges, effectively preempts the area that Wolff left to the sound discretion of prison officials." Id.
Nonetheless, "prison officials may be required to explain, in a limited manner, the reason why witnesses were not allowed to testify," but "so long as the reasons are logically related to preventing undue hazards to `institutional safety or correctional goals,' the explanation should meet the due process requirements as outlined in Wolff." Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985); see also DOC Admin.Reg. 150-01(IV)(E)(3)(j)(1), (3) (a hearing officer has discretion not to call, or limit questioning of, a witness who may be subject to verbal or physical harassment).
A division of this court has held that an inmate's right to due process has been violated when that inmate was denied the opportunity to call a witness. See Villa v. Gunter, 862 P.2d 1033, 1034-35 (Colo.App. 1993). Federal courts have held the same. See, e.g., Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir. 2006) (denial of inmate's request to call complaining corrections officer violated inmate's due process; however, such error was harmless); Serrano v. Francis, 345 F.3d 1071, 1079-80 (9th Cir. 2003) (violation of due process in denying inmate's request to call witness when no reason appeared on the record for denial); Pannell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002) (same); Smith v. Mass. Dep't of Correction, 936 F.2d 1390, 1400 (1st Cir. 1991) (same); Brooks v. Andolina, 826 F.2d 1266, 1269 (3d Cir. 1987) (same); Mitchell v. Dupnik, 75 F.3d 517, 525 (9th Cir. 1996) (prison policy prohibiting calling witnesses to testify in disciplinary hearings violated due process); Ramer v. Kerby, 936 F.2d 1102, 1104-05 (10th Cir. 1991) (prison policy prohibiting prisoners from calling staff members as witnesses violated due process); Moran v. Farrier, 924 F.2d 134, 137 (8th Cir. 1991) (failure to call witness requested by prisoner violated internal prison regulations and inmate's due process).
However, our research has uncovered no case that has held that an inmate's right to due process was violated where, as here, the inmate's right to cross-examination was permitted but limited to the incident in question.
And while prison regulations are primarily designed to guide correction officials in administration of a prison and "[are] not designed to confer rights on inmates," Sandin v. Conner, 515 U.S. 472, 481-82, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), in certain circumstances, when an agency creates procedures for review, due process of law requires the agency to adhere to those procedures even if they exceed what is constitutionally required. Dep't of Health v. Donahue, 690 P.2d 243, 249 (Colo. 1984).
The Colorado Department of Corrections has promulgated extensive regulations with regard to prison disciplinary hearings. Those regulations provide an inmate's right to request the testimony of witnesses at hearings, DOC Admin. Reg. 150-01(IV)(E)(3)(j)(1); however, the regulations do not provide inmates with the absolute right to confront and cross-examine witnesses in disciplinary hearings if, in the judgment of the hearing officer, there are sound reasons for denying confrontation or cross-examination. DOC Admin. Reg. 150-01(IV)(E)(3)(j).
Here, plaintiff was allowed to call and question the complaining officer regarding the discovery of the prescription pills in his cell, but was denied the opportunity to question the officer about (1) her feelings toward his religion, (2) her fears and prejudices against him, (3) other items she allegedly removed from his footlocker, and (4) the number of write-ups she had authored. The hearing officer asked plaintiff to illustrate the types of questions he wished to ask the complaining officer. Thereafter he explained to plaintiff that he believed the questions would go beyond the discovery of the pills and were likely to harass the complaining officer, and ultimately denied plaintiffs request.
We conclude plaintiff received adequate due process, because unlike those cases in which an inmate's request for a witness was denied outright and without justification, the hearing officer here provided plaintiff with an opportunity to question the complaining officer about the incident in question, provided him an opportunity to explain the proposed line of questioning, and only denied those questions he believed to be harassing. As the Supreme Court stated in Baxter and Ponte, the right to call witnesses does not include the right to cross-examine witnesses. So long as the reasons provided for limiting cross-examination are logically related to institutional safety or correctional goals, the explanation meets the due process requirements outlined in Wolff. Ponte, 471 U.S. at 497, 105 S.Ct. 2192; Baxter, 425 U.S. at 322, 96 S.Ct. 1551.
Inmates have the right to individualized balancing of the importance of their proposed evidence against the interests of the institution. See Ramer, 936 F.2d at 1104-05. Thus, as discussed, a blanket prohibition of testimony without any individualized analysis would violate due process. Id. Here, the hearing officer listened to plaintiffs request to cross-examine the complaining officer, ruled on that request and stated the reason for his ruling: plaintiffs questioning would be irrelevant and would constitute harassment. See DOC Admin. Reg. 150-01(IV)(E)(3)(j)(3) ("In no event should an accused offender, or his representative, be allowed to question, or to continue addressing questions to a witness, when it appears that the questions are primarily intended to harass the witness or are unduly repetitious or irrelevant.").
Harassment is not defined in the regulations. In our view, however, the hearing officer was not constrained by a dictionary definition of the word; rather what constitutes harassment is within the sound discretion of the hearing officer, whose decision we will not disturb so long as it is not arbitrary or capricious.
In determining whether the hearing officer limited cross-examination based on his determination that plaintiffs questions were either irrelevant or harassing, we must accord due deference to the decision of the hearing officer. See Baxter, 425 U.S. at 321-22, 96 S.Ct. 1551 (the extent to which prisoners may confront and cross-examine witnesses should be left to the sound discretion of prison officials and administrators). Affording proper deference to the hearing officer's decision, we conclude plaintiffs due process rights were not violated.
In reaching this conclusion, we are mindful of the delicate balance that has been recognized between prisoners' religious guarantees and the legitimate concerns of prison administrators. See Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007). In addition, prisoners have access to grievance procedures. For example, under DOC Admin. Reg. 850-04, inmates are permitted to bring grievances concerning "policies and conditions within the institution that affect the offender personally; actions by employees and offenders; and incidents occurring within the institution that affect the offender personally." DOC Admin. Reg. 850-04(IV)(B)(3). AR Form 850-04B, titled "Grievance Subject List," includes as valid grievance subjects both religion and staff conduct.
III. Sufficiency of the Evidence
Plaintiff also contends that there was insufficient evidence to support the hearing officer's determination that he was guilty of "Abuse of Medication." We disagree.
In C.R.C.P. 106(a)(4) proceedings, appellate review is limited to whether the governmental body's decision was an abuse of discretion or was made without jurisdiction, based on the evidence in the record before that body. C.R.C.P. 106(a)(4)(I); Thomas v. Colo. Dep't of Corr., 117 P.3d 7, 10 (Colo.App. 2004). When there is a challenge to the sufficiency of the evidence, the prison official's decision must be upheld if there is "some evidence" in the record to support it. See Kodama v. Johnson, 786 P.2d 417, 420 (Colo. 1990).
The weight and credibility of a witness's testimony are committed to the discretion of the hearing officer. Martinez v. Bd. of Comm'rs of Hous. Auth., 992 P.2d 692, 696 (Colo.App. 1999). Appellate review of a district court's decision in a proceeding under C.R.C.P. 106(a)(4) is de novo. Leichliter v. State Liquor Licensing Auth., 9 P.3d 1153, 1155 (Colo.App. 2000).
An inmate commits "Abuse of Medication," a Class II, Rule 14 violation of the COPD, "when he, in any way, stores, saves, gives away, possesses, or removes any prescription medication without authorization." DOC Admin. Reg. 150-01(IV)(D).
The incident report, the notice of charge, and the testimony of the complaining officer established that during a routine shakedown of plaintiffs cell two prescription pills were found wrapped in tissue paper inside a dental floss container on a shelf in plaintiffs foot-locker. In defense, plaintiff argued that he had a self-medication card for the pills and had no need to hide them. Accordingly, he argued that the pills were planted by either the complaining officer or his former cell-mate.
Nevertheless, as noted, the weight and credibility of a witness's testimony are committed to the discretion of the hearing officer. Martinez, 992 P.2d at 696. Thus, although plaintiff claims that he did not hide the medication, there is sufficient evidence to support the hearing officer's determination that plaintiff saved or stored the two pills in his dental floss container and was guilty of "Abuse of Medication." Accordingly, we will not reverse that determination on appeal. See Kodama, 786 P.2d at 420.
To the extent plaintiff argues that the "some evidence" standard is insufficient to support the DOC's actions in taking away any earned time or good time credits for a disciplinary conviction, we note that this argument has been rejected. See Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (the revocation of good time comports with the minimum requirements of procedural due process if the findings of the prison disciplinary board are supported by "some evidence" in the record); see also Villa, 862 P.2d at 1034. Therefore, we conclude that plaintiff is not entitled to additional due process protections based on the hearing officer's imposition of a sanction that included loss of thirteen days good time.
IV. Other Issues A. Discovery
We reject plaintiffs contention that the trial court erred in refusing to allow him to conduct discovery.
Review under C.R.C.P. 106(a)(4) is conducted "based on the evidence in the record before the defendant body or officer." C.R.C.P. 106(a)(4)(I). No new evidence is allowed and the reviewing court does not independently weigh the evidence. See Kodama, 786 P.2d at 420; Hazelwood v. Saul, 619 P.2d 499, 501 (Colo. 1980).
Therefore, because no new evidence may be considered by the trial court in reviewing the hearing officer's determination, we conclude that plaintiff was not entitled to conduct discovery in the trial court regarding any exculpatory evidence that allegedly was not admitted at his disciplinary hearing.
B. Search of Cell
Finally, we reject plaintiffs contention that his disciplinary conviction must be reversed because the DOC violated Admin. Regs. 300-06(IV)(H)(4) and 850-06(IV)(E)(5) by allowing the search of his cell to be performed by only one officer. Contrary to plaintiffs contentions, these regulations do not require that any search or inventory be performed by two DOC employees, but merely provide that searches and inventories be performed by two employees "when possible." Hence, we conclude that there is no basis for reversal on these grounds.
The judgment is affirmed.
Judge LICHTENSTEIN concurs.
Judge TAUBMAN dissents.