Opinion
NO. 2014-CA-001452-MR
05-22-2015
STEVEN STAUB APPELLANT v. CLARK TAYLOR, WARDEN; AND DAWN DECKARD, ADJUSTMENT OFFICER, KENTUCKY STATE REFORMATORY APPELLEES
BRIEF FOR APPELLANT: Steven Staub, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEES: Linda M. Keeton Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 14-CI-00107
OPINION
REVERSING
BEFORE: J. LAMBERT, STUMBO, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: Steven Staub, proceeding pro se, has appealed from the order of the Oldham Circuit Court dismissing his petition for declaration of rights arising from a prison disciplinary action. Because we agree with Staub that the disciplinary action decision was not supported by at least "some evidence" of record, we reverse the circuit court's order.
On December 19, 2012, Staub was an inmate at Northpoint Training Center when prison officials located strips in his locker identified as Suboxone. A disciplinary report form was completed by Training Instructor Marcus Faulkner the following day that stated:
DR No. NTC-2012-02873.
On the above date and time I found a total of 11 Suboxone strips in I/M Staub's locker. The strips were in the back cover of 2 different CD's. The locker was locked prior to the search. After the search a chain of custody was completed and I/M was strip searched. Pictures were taken of the Suboxone strips. The 11 strips were turned over to Capt. Beasley to be placed in the evidence locker.The chain of custody document showed that Faulkner received the eleven "Small orange rectangle strips (suboxane [sic])" without Staub signing the release. Faulkner turned the evidence over to Captain Jonathan Beasley to be placed in the evidence locker, and Captain Beasley photographed the evidence and placed it in the evidence locker. All of this took place on December 19, 2013. The form did not show an evidence log number and indicated that it had been obtained at D-3 UL Bed 48. As a result, Staub was charged with possession or promoting dangerous contraband pursuant to Category 6-04. Staub pled not guilty, and an investigating officer was assigned.
The matter was referred to the adjustment committee and was heard by adjustment officer Jason Perkins on January 10, 2013, after two continuances. Staub was found guilty of the charge based upon the following findings:
Inmate Staub present at hearing along with legal aide Lee. Inmate requested no witnesses and pled not guilty. At the investigation inmate stated not guilty. At the hearing inmate stated that he called Marcus Faulkner as a witness to be able to see if there is anything that he has that can verify that they are suboxone strips, and that he just received the chain of custody evidence yesterday, and that he wanted to call Officer Smith, and Sgt. Bentley as witnesses. These witnesses were not called due to the fact that I never received a request for them prior to the hearing. Inmate stated that there is nothing showing that they were tested by a lab, and there is no evidence tag number. I find inmate guilty based on the fact that Mr. Faulkner found a total of 11 suboxone strips in I/M Staub's locker. The strips were in the back cover of 2 different CD's. The locker was locked prior to the search.As a penalty, Staub was given 90 days of disciplinary segregation and forfeited 180 Good Time Days. Staub appealed the adjustment committee's decision to the warden, stating that his due process rights had been violated because he had not received copies of all of the documentary reports, that all of the staff involved in the search had not been listed, and that he had been unable to call any witnesses. He also raised issues related to the chain of custody form, which showed a bunk number that did not belong to him, but to his cell mate, and did not contain an evidence log number. While the ruling is not in the certified record, there is no dispute that the warden ordered a rehearing in February 2013. During this time period, Staub was transferred to the Kentucky State Penitentiary (KSP) in Eddyville.
Rather than conduct another hearing, a new disciplinary report form was filed by Faulkner on February 15, 2013. Faulkner described the incident as follows:
DR No. NTC-2013-00701.
On 12-19-12 at 10:30 am I conducted an area search on inmate Steven Staub #185401. I/M Staub unlocked his locker and had a seat on the floor, while I searched. During the search I was looking in his CD's[.] [W]hen I took the cases apart I found 4 suboxone strips in one case and 7 strips in another. I finished the search and took the 11 strips down to the office where I/M Staub was strip searched with neg. results, after the strip search I completed a chain of custody for the suboxone strips. I then took the chain of custody and suboxone strips to Operations and gave them to Capt. Beasley to put in the evidence locker.Staub again entered a not guilty plea, and Lt. Michael Wilson was assigned to investigate the case.
The matter was again referred to the adjustment committee for a hearing in March. The record includes two sets of email correspondence dated prior to the hearing related to the chain of custody form and the Suboxone strips that had been found. The first one, dated February 28, 2013, is from Internal Affairs Lieutenant Tracy Nietzel of Northpoint Training Center to Adjustment Officer Dawn Deckard. Lt. Nietzel sent Deckard information related to the Suboxone strips seized during the search. The second email chain began on March 1, 2013, with an email from Lt. Wilson to Lt. Nietzel, and copied to Deckard, among others, which contained a request for the chain of custody form. Lt. Nietzel responded with the requested information - the chain of custody form as described above that included a receipt stamp of March 1, 2013, by the adjustment committee - and also stated that there were 33 Suboxone strips that had been recovered rather than eleven. She stated that there were eleven individual strips that had been wrapped in saran wrap, but each wrap contained three strips.
The second hearing took place on March 19, 2013, with Deckard listed as the adjustment officer. The witnesses were listed as Lt. Nietzel, Sgt. Bentley, Faulkner, and Officer Frankie Smith. The adjustment committee noted that the statements of Lt. Nietzel and Sgt. Bentley were read during the hearing and that Faulkner's statement was the same as the write-up and was read during the hearing. Officer Smith was called and stated that he was present during the search and did not touch the evidence. The adjustment committee did not permit testimony from Warden Don Bottom or Bart Nyer because the request was not received within 24 hours of the hearing. Staub was again found guilty based on the following findings:
The record does not include the statements of Lt. Nietzel or Sgt. Bentley. The form also stated that Staub had identified Sgt. Bentley as Captain Beasley.
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Based on the fact that Inmate Staub stated that he was searched on this date. Based on the fact that Trainer Faulkner stated that he was looking in Inmate Staub's CD's when I took the cases apart I found 4 suboxone strips in one case and 7 strips in another. Based on the fact that Lt Nietzel conducted a test of the substance with the MMC Burprenorphine HCL Test and the substance came back positive for Burprenorphine. Based on the fact that Lt. Nietzel stated that she also identified the Suboxone thorugh [sic] the pill identifier just as she would with a tablet or capsule. Based on the fact that Lt. Nietzel stated that after further investigation it was found that the 11 Suboxone stripps [sic] [were] individually
wrapped in saran wrap but each little wrap contained 3 strips. Based on the fact that Captain Beasley issued a statement that he did place the evidence into the evidence locker.The same penalty was imposed.
Staub appealed the adjustment committee's ruling to KSP Warden Clark Taylor, disputing Lt. Nietzel's testimony that she performed field testing on the strips because she never had possession of the evidence pursuant to the chain of custody form. In conjunction with this argument, he also disputed the "new" chain of custody form that appeared between March 1 and 19, 2013, showing an additional entry on December 19, 2013, from Lt. Nietzel stating that the evidence was in the I/A office for testing under the "Purpose of Change in Custody" column of the form. This new version form also included an evidence log number, which had not been present on the prior version of the form. Staub also disputed that there was proof that the evidence tested had been found with him, noting that the bed number listed on the chain of custody form did not belong to him. Finally, he disputed that Deckard should have been allowed to preside over the hearing because she had appeared on emails from the investigative aspect of the process. The warden denied his appeal on April 18, 2013, stating:
The suboxone strips were found in your assigned locker. They tested positive and were properly identified. Suboxone strips are very distinctive in shape and color. Originally it was reported that there were 11 strips but subsequently they found that there were three strips in each saran wrapped package for a total of 33 strips. This does not constitute a due process violation. I find evidence to be sufficient and I am denying your appeal.
Staub filed a petition for declaration of rights in the Oldham Circuit Court on February 18, 2014, naming KSP's warden and Deckard. Staub alleged the same violations of his due process rights as he did in his appeal to the warden, and he requested restoration of 180 days of good time credit and other meritorious and statutory time for which he would have been eligible in the interim. In response, Taylor and Deckard argued that Staub had received sufficient due process, that "some evidence" supported the disciplinary finding, and that the petition should therefore be dismissed. Deckard also argued that she should be dismissed as a party because she did not have the authority to provide the relief requested; only the warden had that authority. Staub objected to Taylor and Deckard's motion, stating that they had not responded at all to his fraud allegation or presented direct evidence to refute the documents he attached to his petition. The circuit court dismissed Staub's petition on May 1, 2014, and this appeal now follows.
On appeal, Staub continues to make the same arguments presented below related to violations of his due process rights, while Taylor and Deckard confine their response to arguing that the "some evidence" standard was met by the investigating officer's report.
In Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), the United States Supreme Court stated, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Citing Wolff, the Supreme Court held:
Where a prison disciplinary hearing may result in the loss of good time credits, Wolff held that the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary actions.Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985) (internal citation omitted). Also citing Wolff, the Supreme Court of Kentucky recently held:
Accordingly, an inmate facing disciplinary proceedings must be given: a hearing before any deprivation of property occurs; advance notice of the claimed violation; an opportunity to call witnesses and present documentary evidence "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals"; and a written statement by the factfinder detailing the evidence relied on and the reasons for disciplinary action.Ramirez v. Nietzel, 424 S.W.3d 911, 916 (Ky. 2014) (footnote omitted). There does not appear to be any dispute that Staub received these three due process protections. However, this does not end our inquiry.
The Hill Court went on to observe:
Although Wolff did not require either judicial review or a specified quantum of evidence to support the factfinder's decision, the Court did note that "the provision for a written record helps to assure that administrators, faced with possible scrutiny by state officials and the public,
and perhaps even the courts, where fundamental human rights may have been abridged, will act fairly." Id., at 565, 94 S.Ct., at 2979. We now hold that revocation of good time does not comport with "the minimum requirements of procedural due process," id., at 558, 94 S.Ct., at 2976, unless the findings of the prison disciplinary board are supported by some evidence in the record.Hill, 472 U.S. at 454, 105 S.Ct. at 2773. In determining the existence of "some evidence," the Court stated, "[a]scertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id., 472 U.S. at 455-56, 105 S.Ct. at 2774 (citations omitted). See also Ramirez, 424 S.W.3d at 917 ("If 'some evidence' is satisfied, the fear of arbitrary government action is removed and no due-process violation is found."); Smith v. O'Dea, 939 S.W.2d 353 (Ky. App. 1997) (adopting the holding in Hill).
In O'Dea, this Court went on to explain the process of review for prison disciplinary actions and specifically stated that the summary judgment standard applies. We explained:
Where, as here, principles of administrative law and appellate procedure bear upon the court's decision, the usual summary judgment analysis must be qualified. The problem is to reconcile the requirement under the general summary judgment standard to view as favorably to the non-moving party as is reasonably possible the facts and any inferences drawn therefrom, with a reviewing court's duty to acknowledge an agency's
discretionary authority, its expertise, and its superior access to evidence. In these circumstances we believe summary judgment for the Corrections Department is proper if and only if the inmate's petition and any supporting materials, construed in light of the entire agency record (including, if submitted, administrators' affidavits describing the context of their acts or decisions), [do] not raise specific, genuine issues of material fact sufficient to overcome the presumption of agency propriety, and the Department is entitled to judgment as a matter of law. The court must be sensitive to the possibility of prison abuses and not dismiss legitimate petitions merely because of unskilled presentations. Jackson v. Cain, 864 F.2d 1235 (5th Cir. 1989). However, it must also be free to respond expeditiously to meritless petitions. By requiring inmates to plead with a fairly high degree of factual specificity and by reading their allegations in light of the full agency record, courts will be better able to perform both aspects of this task.O'Dea, 939 S.W.2d at 356.
We must agree with Staub that in light of the questions arising from the chain of custody form, there is not "some evidence" in the record to support the finding of guilt. In applying the "some evidence" standard, the Supreme Court of Kentucky explained:
This framework, established to balance the divergent interests involved in prison disciplinary hearings, satisfies the principle that "[w]hen all is said and done, common sense must not be a stranger in the house of the law." Cantrell v. Kentucky Unemployment Ins. Comm'n, 450 S.W.2d 235, 236-37 (Ky. 1970). There is perhaps no other area of the law where this principle is more relevant than in prison discipline litigation.Webb v. Sharp, 223 S.W.3d 113, 118 (Ky. 2007). In Webb, our Supreme Court was considering the use of field tests. The Court went on to recognize:
Before we can consider the question of whether the field tests used in this case would satisfy the "some evidence" standard, a threshold question as to reliability must be answered. For "[a]lthough a prison inmate facing administrative disciplinary proceedings does not have the same procedural safeguards as does a person facing criminal prosecution or even parole revocation, fundamental fairness dictates that the evidence relied upon to punish him at least be reliable."Id. 119 (citations omitted). The Court ultimately concluded that because the prison officials failed to establish the reliability or foundation for the field tests, the results could not be used to meet the "some evidence" standard. Id.
In the present case, Taylor and Deckard failed to establish an adequate foundation to permit the use of the field test results. The adjustment committee's and the warden's rulings were based almost entirely upon the results of Lt. Nietzel's field test on the suspected Suboxone strips as well as her identification through the pill identifier. The chain of custody form received by the adjustment committee on March 1, 2013, does not show that Lt. Nietzel ever had possession or custody of the suspected Suboxone strips. Rather, only Faulkner and Captain Beasley had custody of the evidence on December 19, 2012. While there is no dispute that the evidence was photographed and secured in the evidence locker by Captain Beasley, there is absolutely no mention that Lt. Nietzel took custody of the evidence or that any testing was ever performed, other than in the second version of the chain of custody form that showed another change of custody on December 19, 2012. Because this fourth entry was not on the form received by the adjustment committee several months later, this new version of the form is highly suspect and cannot form the basis for the test results Lt. Nietzel claimed were obtained from her field tests. We reach this conclusion in spite of any statement by Lt. Nietzel to the contrary regarding any testing she might have performed because there is no evidence linking that testing to the strips found during the search.
In Webb, the Supreme Court went on to determine whether there was other evidence outside of the field test results to provide "some evidence" to support the disciplinary action. See Webb, 223 S.W.3d 121. In this case, the only other findings made by the adjustment committee outside of the test results were Staub's admission that he had been searched that day, that Faulkner said he found the strips in Staub's CD cases, and that Captain Beasley had placed the evidence into the evidence locker. While he had been searched that day, the chain of custody form lists Bed 48 as the location where the strips were obtained, which Staub maintains was not his bed. Accordingly, there is no other evidence in the record to support the imposition of any disciplinary action or the warden's determination that Staub's due process rights were not violated.
Based upon this holding, we need not address Staub's argument regarding Deckard's serving as the adjustment officer in his second hearing.
For the foregoing reasons, the order of the Oldham Circuit Court is reversed.
ALL CONCUR. BRIEF FOR APPELLANT: Steven Staub, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEES: Linda M. Keeton
Frankfort, Kentucky