Opinion
NUMBER 2016 CA 0695
02-17-2017
TIMOTHY OLIVER v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Timothy Oliver Angie, LA Plaintiff/Appellant, In Proper Person Debra A. Rutledge Baton Rouge, LA Counsel for Defendant/Appellee, Louisiana Department of Public Safety and Corrections
NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana
Docket Number C27218 Honorable Todd Hernandez, Judge Presiding Timothy Oliver
Angie, LA Plaintiff/Appellant,
In Proper Person Debra A. Rutledge
Baton Rouge, LA Counsel for Defendant/Appellee,
Louisiana Department of Public
Safety and Corrections BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. WHIPPLE, C.J.
This is an appeal by Timothy Oliver, an inmate in the custody of the Louisiana Department of Public Safety and Corrections ("DPSC"), from a judgment of the district court, affirming the disciplinary board's decision that found Oliver guilty of aggravated disobedience. For the following reasons, we vacate and remand.
FACTS AND PROCEDURAL HISTORY
In a July 16, 2013 disciplinary report, Oliver was charged with a violation of Disciplinary Rule 5, Aggravated Disobedience, and Disciplinary Rule 17, Property Destruction, for allegedly kicking his mattress out of the cell instead of carrying the mattress and laying it against the tier wall as ordered. Following a disciplinary hearing, Oliver was found guilty of the Rule 5 and Rule 17 violations. Additionally, the Disciplinary Board denied several of Oliver's motions The Disciplinary Board sentenced Oliver to ten days isolation and forfeiture of ninety days of good time for the Rule 5 violation, and two weeks cell confinement and ten days isolation for the Rule 17 violation.
Oliver appealed the decision to the warden, alleging that he was denied due process by the denial of his motions to submit evidence, call offender witnesses, and "face his accuser." The warden dismissed the Rule 17 violation of property destruction, because there was no damage to the mattress, but concurred with the judgment of the Disciplinary Board in all other respects. Thereafter, Oliver appealed to the Secretary of the DPSC, again alleging that he was denied due process. The Secretary denied his appeal.
Oliver then filed a petition for judicial review in the Nineteenth Judicial District Court, alleging that the proceedings before the Disciplinary Board violated his due process rights. On July 13, 2015, the Commissioner issued an order remanding the matter to the DPSC with instructions that the DPSC supplement the record with the audio recording of the disciplinary hearing, as the recording was "necessary to determine the issues before th[e] [c]ourt." The matter was stayed for ten days for the DPSC to supplement the record.
On August 12, 2015, Oliver filed a "Request for Final Recommendation," contending that the DPSC failed to comply with the supplementation order of the Commissioner and, therefore, that the matter was ripe for review and for resolution in his favor. However, the Commissioner issued a report on September 10, 2015, wherein, after consideration of the administrative record "including the audio record of the hearing involved," he recommended that the district court uphold the Disciplinary Board's finding of guilt. Thereafter, the district court rendered judgment on October 6, 2015, adopting the Commissioner's recommendation.
Oliver appeals the October 6, 2015 judgment, contending that his due process rights were violated when he was denied the ability to face his accuser or call witnesses at the disciplinary hearing. Additionally, he avers in his brief that hearings before the Disciplinary Board shall be recorded in their entirety and the recordings preserved and that all procedural requirements for disciplinary hearings must be followed unless waived by the accused.
DISCUSSION
The DPSC has promulgated rules for the handling of prisoner disciplinary matters entitled Disciplinary Rules and Procedures for Adult Offenders. LAC 22:I.341, et seq. Under the rules, a prisoner has certain rights when appearing before the Disciplinary Board, including the right to present evidence and witnesses on his behalf and to cross-examine his accuser, provided such request is relevant, not repetitious, not unduly burdensome to the institution and/or not unduly hazardous to staff or offender safety. LAC 22:I.349(A)(1); see also Hills v. Cain, 99-2324 (La. App. 1st Cir. 3/31/00), 764 So. 2d 1048, 1049-1050, and Flowers v. Phelps, 595 So. 2d 668. 669 (La. App. 1st Cir. 1991). The rules also provide certain procedural requirements for hearings by the Disciplinary Board, including the requirement that all hearings be recorded in their entirety and the recording preserved for a period of five years. LAC 22:I.349(B).
The rules were amended in December 2013 and May 2014. Because Oliver's alleged offense and the disciplinary proceedings at issue herein took place in July 2013, we cite the version of the rules as they existed at that time.
Although the Commissioner's report refers to a recording of the disciplinary hearing, the record on appeal, as sent to this court from the district court, did not contain any audio recordings of the disciplinary proceedings before the Disciplinary Board. Thus, by order dated November 16, 2016, this court remanded the matter to the district court for the limited purpose of having the district court take the necessary steps to have the record on appeal supplemented with the audio recordings or to provide a per curiam setting forth why the record cannot be supplemented with these recordings. The record was thereafter supplemented on December 6, 2016, with audio recordings related to this disciplinary matter.
However, the audio disk supplemented into the record contains recordings from two separate hearings, labeled on the disk as July 17, 2013 and July 24, 2013. The recording of the first hearing demonstrates that Oliver's motions were heard that date, with some motions granted and some denied. Particularly, Oliver's motion to face his accuser was denied on the basis that it would be unduly burdensome to the institution in that the accusing officer worked the night shift, but the Disciplinary Board indicated that it would be "stipulating that for the record." Additionally, with regard to Oliver's motion to call witnesses, the Disciplinary Board again ruled that "all that will be stipulated for the record." Finally, with regard to Oliver's request that he be allowed to introduce an affidavit of his witness at the disciplinary hearing, the Disciplinary Board ruled that "anything pertaining to the witness that will be stipulated ... as part of the record." No particular reasons were given with regard to the denial of his motions to call witnesses or offer an affidavit as evidence. The matter was then deferred to a later hearing date.
The recording of the second hearing reveals that Oliver was not present that date because he was on mental health watch. Accordingly, the matters were deferred to the next hearing date and thus were not resolved. No further recordings are contained on the audio disk that was supplemented into the record.
The absence of a tape of the disciplinary hearing prevents this court from fully addressing Oliver's contentions on appeal that his due process rights were violated. See Flowers, 595 So. 2d at 670. Specifically, we are unable to discern whether stipulations regarding the testimony of any witness Oliver sought to call were offered into the record or to discern the content of any stipulation that may have been entered into the record. Thus, the absence of a recording of the disciplinary hearing has the effect of defeating Oliver's right to judicial review of this matter. See Hills, 764 So. 2d at 1050. For these reasons, we are constrained to vacate the judgment of the district court and the decision of the DPSC and remand this matter to the DPSC for further proceedings, including a retrial in the absence of any audio recording of the original disciplinary hearing that may have taken place. See Hills, 765 So. 2d at 1050. In the event that the DPSC is able to locate an audio recording of a disciplinary hearing for these rule violations, the DPSC may reenter a ruling of discipline based on the recorded disciplinary hearing.
It is further provided in LAC 22:I.349(A)(1) that "[t]he board has the option of stipulating expected testimony from witnesses. In such cases, the record of the hearing shall contain a statement indicating the nature of the stipulated testimony. The board should assign proper weight to such testimony as though the witness had actually appeared." (Emphasis added.) --------
CONCLUSION
For the above and foregoing reasons, the October 6, 2015 judgment of the district court and the decision of the DPSC in Appeal Number RCC-2013-356 are vacated, and this matter is remanded to the DPSC for further proceedings consistent with this opinion, including retrial in the absence of an audio recording of the original disciplinary hearing. Costs of this appeal in the amount of $1,114.50 are assessed against the DPSC.
VACATED AND REMANDED.