Opinion
NO. 2013-CA-000862-MR
02-07-2014
RONNIE CLARK APPELLANT v. MARTIN GRANADO; JANET L. HERRELL; LT. CHRISTINA DAUGHERTY; AND BRITTANY PUCKETT APPELLEES
BRIEF FOR APPELLANT: Ronnie Clark, pro se Eddyville, Kentucky BRIEF FOR APPELLEES: Angela T. Dunham Department of Corrections Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 12-CI-00944
OPINION
AFFIRMING
BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES. LAMBERT, JUDGE: Ronnie Clark appeals from an Oldham Circuit Court order dismissing his petition for declaration of rights in a prison disciplinary proceeding. Having reviewed his arguments, the record, and the applicable law, we affirm.
The episode which led to the disciplinary action occurred while Clark, a state inmate, was temporarily housed at the Marshall County Jail. Jail personnel asked Clark several times to leave his cell so that it could be cleaned, but he refused. He then poured water and shampoo over the cell floor. Clark had pencils in his hand and was using his mattress as a shield against the jail staff. One member of the staff stepped inside the cell and Clark lunged at him. The officers were able to get Clark to the floor, although he continued to resist. He was stunned with a taser three times before he complied. Clark admits that he was "less than responsive" to the requests to leave his cell, and that he used the mattress as a shield against the taser.
A disciplinary report prepared by Brittany Puckett, a member of the jail staff, was later sent to the Roederer Correctional Complex (RCC), where Clark had been transported. The Investigating Officer at the RCC, Lieutenant Christina Daugherty, made several unsuccessful attempts to contact the jail regarding the incident. In her report, she explained that she would rely instead on Puckett's written report and on three written statements from jail officers. She also interviewed Clark, after giving him a Miranda warning. He told her that the jail officers had been trying to forcefully recover a package of methamphetamine from him, that he did not physically assault anyone and had just used the mattress as a shield to protect himself from the taser.
Clark was charged with physical action against an employee or non-inmate. Following a prison disciplinary hearing, he was found guilty of the infraction based upon the statements of the officers involved and his own confirmation that he had the mattress up to protect himself. The penalty imposed was assignment to disciplinary segregation for 180 days and the forfeiture of 730 days of non-restorable good time credit.
Clark filed an appeal from the disciplinary action, making the following claims: (1) that there had been a failure to abide by policy and procedure because the reporting employee was not an eyewitness, and did not interview eyewitnesses in order to verify the facts; (2) that he had a right to question the officers who did the "write-up"; and (3) that his due process rights were violated because the incident report was issued too long after the incident at the jail occurred. The Warden denied the appeal. Clark then filed a petition for declaration of rights in the Oldham Circuit Court. The appellees filed a response and a motion to dismiss. Clark filed a reply and a motion to strike. The circuit court summarily dismissed the petition, and this appeal followed.
Our standard of review requires us to recognize that "[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." Webb v. Sharp, 223 S.W.3d 113, 117 (Ky. 2007), quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). The minimum requirements of due process are met if "the findings of the disciplinary board are supported by some evidence of record." Id. at 118, citing Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985).
Clark argues that the trial court abused its discretion when it refused to strike the appellees' response and motion to dismiss his petition because they attached documents that were not part of the adjustment committee hearing proceedings. These documents included the written statements of the three officers involved in the incident at the jail. Under the "some evidence" standard that governs the review of these proceedings, there was sufficient evidence in the write-up and investigatory report attached to Clark's petition for declaration of rights to support the circuit court's order of dismissal. The documents attached by the appellees are merely cumulative evidence, and the trial court did not err in refusing to strike their response and motion to dismiss.
Next, Clark argues that the circuit court abused its discretion in failing to make independent findings, and merely "rubber stamped" the dismissal order tendered by the appellees. The circuit court is not required, nor expected, to make independent findings when reviewing a prison disciplinary proceeding. The focal point of the circuit court's review "should be the administrative record already in existence, not some new record made initially in the reviewing court." Smith v. O'Dea 939 S.W.2d 353, 356 (Ky. App. 1997) (internal citations omitted). "The circuit court's fact-finding capacity is required only if the administrative record does not permit meaningful review. Even then, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Id. (internal citations and quotation marks omitted). In this case, the record was sufficient to permit meaningful review by the circuit court. The "some evidence" standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of evidence." Webb, 223 S.W.3d at 117.
Clark raises numerous claims of due process violations. Kentucky Revised Statutes (KRS) 454.415 provides that no action shall be brought by an inmate until administrative remedies are exhausted. Thus, we may only review those claims for which Clark exhausted administrative remedies by raising them in his appeal to the Warden. Houston v. Fletcher, 193 S.W.3d 276, 277-78 (Ky. App. 2006).
Clark argues that the disciplinary report did not include adequate verification, because the officer who prepared it was neither an eyewitness to the episode in the jail cell, nor able to speak to the officers who did witness the episode. Kentucky Corrections Policy and Procedures § 15.6 II. C. (1.)( a.) provides that the disciplinary report shall "contain only the facts the reporting employee has personally witnessed or otherwise verified, including statement of how verification is made."
Our courts have been reluctant to hold that a prison regulation, in and of itself, creates a liberty interest in inmates. The federal Court of Appeals for the Sixth Circuit has stated, in reliance on United States Supreme Court precedent, that
[t]here is no constitutional violation when state actors fail to meet their own regulations, so long as the minimum constitutional requirements have been met. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (adequacy of procedures is matter of federal constitutional law); Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir.1990)Black v. Parke, 4 F.3d 442, 448 (6th Cir. 1993).
(procedures for confinement in segregation governed by federal law); Jackson v. Cain, 864 F.2d 1235, 1252 (5th Cir.1989) (violation of rules alone may be state law violations but not necessarily constitutional violations).
Where the loss of good time credit is at stake, due process requirements in prison disciplinary hearings include the following:
(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 his defense; and (3) a written statement by the factfinder . . . of the evidence relied on and the reasons for the disciplinary action.Webb, 223 S.W.3d at 117-118 (internal citations omitted).
In Clark's case, these minimal requirements were met. He received clear advance notice of the disciplinary charges against him, and a written statement from the hearing officer explaining that he had relied on the statements of the officers involved, and Clark's own admission during the hearing that he had the mattress in front of his body protecting himself.
In a related argument, Clark argues that he was denied the right to question the officers who performed the write-up, including Lieutenant Daugherty and the officers who made statements about what occurred at the jail. But Clark identified no witnesses that he wished to call at the hearing, even though the form advising him of the upcoming hearing allowed him to do so. We agree with the appellees that requiring inmates to identify witnesses before the hearing and not allowing inmates to call previously unidentified witnesses at the hearing is a matter within the adjustment officer's discretion.
Finally, Clark argues that the interval which elapsed between the episode at the jail, which occurred on April 9, 2012, and the report, dated July 24, 2012, was too lengthy. According to the appellees, the officials at the RCC could not issue an incident report until Clark arrived at the RCC, on July 17, 2012. The report was issued seven days later. Clark has cited no authority to show that the length of this delay was unreasonable or violated his due process rights in any way.
The order dismissing Clark's petition for declaration of rights is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Ronnie Clark, pro se
Eddyville, Kentucky
BRIEF FOR APPELLEES: Angela T. Dunham
Department of Corrections
Frankfort, Kentucky