Opinion
CV154007603S
07-12-2018
Robert COOVER (Inmate #272995) v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
OPINION
Bhatt, J.
The self-represented petitioner Robert Coover filed a petition on October 26, 2015, alleging that correctional officers failed to properly investigate an incident on May 22, 2015, which resulted in him being charged with the Class A offense "Impeding Order." The petitioner alleged that had correctional officials reviewed reports by other staff present during the alleged incident, they would have concluded that there was, in fact, no incident or threat and thus the petitioner would not have been issued a disciplinary ticket which resulted in the forfeiture of risk reduction earned credits ("RREC") and placement in punitive segregation. Petition for Writ of Habeas Corpus ("Petition") ¶¶ 13-14, 17.
The exhibits variously refer to "punitive segregation" and "administrative detention." The petitioner referred to "seg." For the purposes of this decision, the court interprets them all to mean effectively the same thing: segregation out of the general population as a sanction for the actions forming the basis of the disciplinary tickets.
On June 8, 2018, the matter was tried to this court. The petitioner testified, as did Officer Fernandes. In addition, both the petitioner and respondent submitted several exhibits. At trial, the petitioner also alleged that his plea to the ticket was made under duress. The petitioner asked this court to grant relief by: 1) expunging the disciplinary report from his record; 2) reinstating the "good time" that was taken, and; 3) reinstating contact visits. At trial, the petitioner amended this request to ask for a new disciplinary hearing.
Officer Fernandes has retired from the Department of Correction ("DOC").
The court construes this to be a claim that his plea violated due process because it was not knowingly, intelligently or voluntarily made. See n.7, infra .
Based on an application of relevant caselaw to the evidence presented, this court cannot find that the petitioner’s due process rights were violated. Therefore, the petition is DENIED.
I. FINDINGS OF FACT
Based on the entirety of the evidence, the court finds that on May 22, 2015, the petitioner was an inmate at the Garner Correctional Institution and was scheduled to have a special visit with his daughter, facilitated by an attorney who was present. Tiffany Falcon, the mother of the petitioner’s daughter, was also present but was to remain in the lobby and not participate in the visit. However, his daughter was upset and did not wish to see the petitioner without Ms. Falcon present in the visiting room. Despite efforts by Ms. Falcon and the attorney, his daughter remained unconvinced and they left the facility without visiting the petitioner. Prior to leaving the facility, Ms. Falcon approached Correctional Officer Gizzi and relayed that a third party who was present in the visiting room had indicated to her that the petitioner had stated to the third party "tell Tiffany Ima [sic] get her" and that the petitioner "was holding his hand in the shape of a gun." Ms. Falcon was very upset and wished to speak with a supervisor. Officer Gizzi notified the lieutenant’s office. Based on this, the petitioner was placed in administrative detention and a disciplinary report for the offense of impeding order was written by Lieutenant Camacho.
The third party and the attorney were never identified for the record and their names are not indicated in the exhibits.
The petitioner disputes this version of events and in support of his claim that the incident did not occur, submitted the reports of two other officers who were present in the visiting room at that time. Officer Rodriguez’s report is consistent in its description of events except that Officer Rodriguez did not witness or recognize any threats coming from the petitioner and records the petitioner’s statement to the third party as "tellem I said wasup." Rec Supervisor Lynch’s report was also submitted in which it is stated that the supervisor "did not witness anything out of the ordinary." All three incident reports were written on the same day, May 22, 2015, the day of the incident. The petitioner maintains he did not make any threat to Ms. Falcon and relies on the reports of Officer Gonzalez and Supervisor Lynch in support of his complaint.
Officer Fernandes was assigned as the investigating officer in this matter. Officer Fernandes testified that he reviewed the incident report that formed the basis for the disciplinary ticket, but upon review, he and his supervisory Disciplinary Coordinator determined that the initial charge of impeding order was inappropriate and the Disciplinary Coordinator substituted a different charge of interfering with safety or security. He also testified that he did not review either Officer Rodriguez’s report or Supervisor Lynch’s report. He testified that it was not his practice to review supporting reports before approaching the inmate with the disciplinary report.
It is undisputed that on June 1, 2015, the petitioner was presented with this substituted disciplinary ticket by Officer Fernandes and on that same day agreed to plead guilty to the ticket. His plea to this ticket resulted in him being placed in segregation for seven days, a loss of ten days of recreation and thirty days of visits in addition to the forfeiture of ten days of RREC. Respondent’s Exhibit 4. Also on June 1, the petitioner was presented with, and pleaded guilty to, another disciplinary ticket for making a threat on the telephone shortly after the May 22 visiting room incident. As a result of this second ticket he was placed in segregation for a further five days, lost recreation for another ten days and lost commissary privileges for thirty days, along with another ten days of forfeited RREC. This second ticket is not the subject of any challenge by the petitioner and thus any future reference in this decision will be to the first ticket unless specifically noted otherwise.
The petitioner testified credibly that when presented with the ticket, his sole focus was retaining his telephone privileges. He testified that he had just learned that his father had passed away and he was still upset by his daughter’s refusal to enter the visiting room to meet with him and thus he needed access to the telephone in order to speak to family. He testified believably and forcefully on several occasions that he did not commit the act but in order to be able to keep his telephone privileges, he agreed to plead guilty to the charge of interfering with safety or security. He testified that he expressed several times to the investigating officer that he didn’t agree that he committed the acts, but the only reason he agreed to plead guilty was to retain his phone privileges.
Officer Fernandes testified that he was present when the petitioner was presented with the revised disciplinary ticket and he took the plea of the petitioner. He testified that he did not pressure the petitioner into pleading to the ticket and that the petitioner’s plea was voluntary.
II. DISCUSSION
At the outset, the court notes that this is an unusual scenario: the petitioner pled guilty to an allegation that he adamantly maintained he did not commit in order to retain certain privileges. Available to DOC, at the time of the plea, were reports written by DOC officials that strongly contradicted the initial allegation. The petitioner was not aware of the existence of these reports when he pleaded guilty, nor would DOC Administrative Directives require he receive them unless he chose to have a hearing. Thus, while hindsight reveals that there exists significant doubt as to whether the petitioner actually committed the alleged infraction, the question this court is confronted with is whether the petitioner was deprived of due process at any stage of the disciplinary proceedings.
This court takes judicial notice of the DOC Administrative Directives. See Pierce v. Lantz, 113 Conn.App. 98, 106 n.5, 965 A.2d 576, cert. denied, 293 Conn . 915, 979 A.2d 490 (2009).
In order to prevail on a due process claim in the prison discipline context, an inmate must prove that: (1) he has been deprived of a liberty interest cognizable under the due process clause; and (2) the deprivation of the liberty interest has occurred without due process of law. Vandever v. Commissioner of Correction, 315 Conn. 231, 241, 106 A.3d 266 (2014). "The requirements imposed by the [Due Process] Clause are, of course, flexible and variable dependent upon the particular situation being examined." Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983).
In the context of the loss of earned "good time" or risk reduction credits, an inmate can be deprived of his statutory good time credit only if he is offered procedural due process protection. Superintendent v. Hill, 472 U.S. 445, 453, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Thus, the inmate must receive (1) advanced written notice of the disciplinary charges, (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and to present documentary evidence in his defense and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. Due process is satisfied if the prison disciplinary board shows some evidence that supports the revocation of good time credit. Jolley v. Commissioner of Correction, 60 Conn.App. 560, 561, 760 A.2d 146 (2000), cert. denied, 274 Conn. 913, 879 A.2d 892 (2005). The ‘some evidence’ standard is a lenient one, requiring only "a modicum of evidence" to support the challenged decision, Superintendent v. Hill, supra, 472 U.S. at 455, and does not require "examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id., 455-56. Instead, courts must decide whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. Id.
Here, the petitioner’s argument is two-fold: first, that corrections officials did not adequately investigate the incident before the petitioner’s plea of guilty and second, that his plea to the ticket was involuntary. Petition ¶¶ 8, 13-14, 17. Based on a review of relevant case law, this court is constrained to find that no due process violation occurred in this case. In doing so, the court is mindful of the fact that the evidence here is unclear as to whether the alleged disciplinary violation actually occurred: the court finds that the reports of Officer Rodriguez and Supervisor Lynch are just as credible as that of Lieutenant Camacho.
"The prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest. The [inmate] has the right not to be deprived of a protected liberty interest without due process of law." Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); Hanrahan v. Lane, 747 F.2d 1137 (7th Cir. 1984) (although prisoners are entitled to be free from arbitrary action and conduct of prison officials, the protections against arbitrary action are the procedural due process requirements as set forth in Wolff v. McDonnell ). Thus, it is not the contested or, for sake of argument, fabricated allegation that is constitutionally offensive, but a finding that the petitioner has actually committed that allegation without due process.
418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
To the extent that the petitioner’s claim can be construed to ask this court to find that due process requires that there must be some discovery provided to the inmate and that the Department has an obligation to conduct an investigation to uncover and turn over exculpatory information prior to accepting a plea by an inmate, the court declines to so hold. There is no Connecticut case that considers this issue and of the other states and Federal courts that have done so, only one has held that Brady v. Maryland applies in the prison disciplinary context. It is also established that a prison disciplinary proceeding is not a criminal prosecution and "the full panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, supra, 418 U.S. 556; Torres v. Commissioner, 84 Conn.App. 113, 118, 851 A.2d 1252, cert. denied, 271 Conn. 941, 861 A.2d 517 (2004). In the absence of any controlling Connecticut authority, this court cannot hold that due process requires discovery or that the requirements of Brady apply in the instant case.
Petition ¶ 17. The petitioner, in his petition, also asks this court to take judicial notice that both the United States Supreme Court and the Second Circuit Court of Appeals have held "in several prison cases" that a ticket written by a correctional official has to be reviewed by someone of higher rank than that official. The petitioner provides no authority for this and the court is unable to find any authority that so holds. Further, this fails to state a claim for which relief can be granted because it does not impact a protected liberty interest.
"[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party ... The modern trend ... is to construe pleadings broadly and realistically, rather than narrowly and technically." Oliphant v. Commissioner of Correction, 274 Conn. 563, 569, 877 A.2d 761 (2005).
373 U.S . 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Compare Chavis v. Rose, 643 F.2d 1281, 1286 (7th Cir. 1981) (holding that Brady applies in the prison discipline context) with Wise v. Carpenter, 838 F.2d 469 (table), No. 86-7381, 1988 WL 4574, *3 (4th Cir. Jan 19, 1988) (unpublished) ("Brady ’s broad disclosure requirements simply cannot be reconciled with the need and exigencies of the institution environment"); Kenney v. Barron, No. 06-16663, 239 Fed.Appx. 494 (11th Cir. June 22, 2007) (unpublished) ("we have never held principles of Brady extend to prison disciplinary hearing analyzing due process claims under Wolff "); Godlock v. Fatkin, No. 03-6003, 84 Fed.Appx. 24, *3 (10th Cir. Dec 16, 2003) (unpublished) ("this circuit has not held that Brady is applicable to prison disciplinary proceedings"); Blunt v. Johnson, No. 7:06CV00545, 2007 WL 1225993 (W.D.Va. April 24, 2007) (unpublished) ("while the United States Court of Appeals for the Seventh Circuit has extended the Brady rule to prison disciplinary proceedings ... the court questions the validity of its application in this context").
"To establish a Brady violation the defendant bears the burden of demonstrating (1) that the prosecution suppressed evidence (2) that the evidence was favorable to the defense and (3) that it was material." Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988).
The petitioner was afforded appropriate due process protections: he was given notice of the charges against him; he was afforded an opportunity to have a hearing and his decision to plead guilty is the reason why there is no finding by the disciplinary hearing officer. However, the petitioner claims that his plea to the ticket was made under duress because had the incident been properly investigated, the investigators would have determined that there was no basis for a ticket and the charge would have been dismissed. Thus, he would not have been put in the position of having to choose between fighting an allegedly baseless ticket and retaining his phone privileges.
There appear to be no cases in Connecticut addressing the issue of the voluntariness of a plea to a disciplinary ticket and very few such decisions nationwide. The few cases that do exist are split on whether a Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), voluntariness analysis would apply. See United States v. Segal, 549 F.2d 1293, 1297 (9th Cir. 1977) (holding that neither Rule 11 of the Federal Rules of Criminal Procedure nor the protections of Boykin apply to probation revocation hearings, and observing that less process is due in prison disciplinary proceedings than in probation revocation hearings). But see Favreau v. Pallito, Docket No. 2015-418, 2016 WL 3883202 (Vt. Supreme Court, July Term, 2016) (unpublished) (holding that because the inmate was not informed of the change in his custodial status from less restrictive to more restrictive as a result of his plea to a ticket, the plea was involuntary and the matter was returned to give the inmate an opportunity to contest the ticket).
This court need not decide this issue, however, because even assuming arguendo that an involuntary plea can establish a violation of due process in the disciplinary ticket context, the petitioner has not presented sufficient evidence to this court that his plea was involuntary. To the contrary, the evidence presented at trial establishes that while the choices available to petitioner may not have been desirable or what he wanted, he made a decision to pick the option that was in his best interest at that time. He repeatedly testified that his focus was on retaining his phone privileges and that was the only reason he decided to plead guilty, thus indicating that he was aware that he had alternatives available to him. Further, he testified that he was aware that he could plead not guilty and proceed to a hearing. Indeed, had he done so, he would have been entitled to have an advocate assist him in investigating the incident and would have had the opportunity to litigate the truthfulness of the allegations against him by presenting, inter alia, the reports of Officer Gonzalez and Supervisor Lynch. DOC Administrative Directive 9.5 Sections 24-27 et seq.
Instead, the petitioner chose to forego the hearing in exchange for keeping his phone privileges so that he could get more information about the untimely demise of his father and his daughter’s reluctance to visit him. While this court is sensitive to the petitioner’s argument that had the Disciplinary Investigator reviewed all the relevant reports, the investigator may have deemed the ticket without merit, it is not this court’s function to second-guess the investigation undertaken. Indeed, Officer Fernandes testified that as a matter of routine he does not review supporting incident reports until after an inmate has made the decision to go to a hearing and this approach is rooted in the DOC’s Administrative Directives, specifically Sections 24-25.
That this was a voluntary decision finds further support in the fact that the petitioner was aware that even if he managed to win at the hearing on this ticket, he had no defense to the second ticket he acquired and the potential punishment for that ticket could include a loss of phone privileges, something he wished to avoid. The court notes that the petitioner did not lose his phone privileges as a result of his guilty plea to either ticket. Thus, the court must find that at the time he entered his plea, he did so knowingly and voluntarily.
His complaint that no basis exists for the ticket is in essence an attempt to re-litigate the disciplinary ticket in this court. This court is not the appropriate venue for that. The court’s role is limited to determining whether the minimal due process requirements have been met by the Department of Corrections when they took actions that resulted in the loss of a liberty interest possessed by the petitioner. Since the petitioner was made aware of the charge against him, was given an opportunity to contest the charge and he voluntarily entered a plea to the charge, the minimal requirements of due process are satisfied. The petition is DENIED.
Petition ¶¶ 11-12, 15, 16.