Opinion
CV144006008
11-30-2016
Steven Cortez v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Steven Cortez, seeks habeas corpus relief in the form of overturning the decision of a disciplinary hearing officer (DHO) that sustained the issuance of a Disciplinary Report (DR) and assessed, among other penalties, a forfeiture of ten days of accrued Earned Risk Reduction Credit (ERRC).
Only disciplinary actions by prison officials which denigrate an inmate's liberty interest are susceptible to redress through habeas corpus. " There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention . . ." Vincenzo v. Warden, 26 Conn.App. 132, 136, 599 A.2d 31 (1991); Hickey v. Comm'r of Corr., 82 Conn.App. 25, 28 fn.3, 842 A.2d 606 (2004).
Thus, prison disciplinary decisions which entail loss of recreational activity, education or work programs, phone privileges visitation privileges, or risk classification fall outside the ambit of habeas corpus jurisdiction, Wheway v. Warden, 215 Conn. 418, 430-32, 576 A.2d 494 (1990); Santiago v. Commissioner, 39 Conn.App. 674, 680-81, 667 A.2d 304 (1995). Also, discretionary transfers, home release, eligibility for parole, release to halfway houses, eligibility for educational and work release programs likewise fail to create a constitutionally protected liberty interest, Baker v. Comm'r of Corr., 281 Conn. 241, 243, 914 A.2d 1034 (2007); Asherman v. Meachum, 213 Conn. 38, 49, 566 A.2d 663 (1989).
In this case, the only disciplinary penalty which can possibly be addressed is the loss of ten days early release. This loss of days is the equivalent to a loss of earned good time credit, which credit does create a constitutionally protected liberty interest, Santiago v. Commissioner, supra, at 682.
" Because of the unique requirements of prison security, the full panoply of rights due a defendant during a criminal trial are not available in a prison disciplinary hearing, " Torres v. Comm'r of Corr., 84 Conn.App. 113, 118, 851 A.2d 1252 (2004), (emphasis added). " In order to prevail on his due process claim, the [petitioner] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law." Vandever v. Comm'r of Corr., 315 Conn. 231, 241, 106 A.3d 266 (2014). " The requirements imposed by the [due process] [c]lause are, of course, flexible and variable [depending on] the particular situation being examined . . . In determining what is due process in the prison context, we are reminded that one cannot automatically apply procedural rules designed for free citizens in an open society . . . to the very different situation presented by a disciplinary proceeding in a state prison . . ." Id., at 244. In order to satisfy due process with respect to inmate discipline, prison officials need only engage in " informal, nonadversary review" of the disciplinary report, Id. Such hearing does require that the department afford " some notice of the charges against [the inmate] and an opportunity to present his views" to the decision-maker, Id. Also, the determination by the reviewer must be supported by some evidence, Id., at 245.
The " some evidence" standard is a " lenient one, requiring only a 'modicum of evidence' to support the challenged decision, " Id. The habeas court's analysis as to whether that standard was met " does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence, " Id. " Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached . . ." Id., (emphasis added).
A habeas court's evaluation of an inmate's claim of an illegal loss of earned time credit is very limited in scope. The habeas judge cannot substitute its view of the evidence for that of the prison officials. Consequently, the court makes no determination as to whether the prisoner actually committed the breach of prison rules. Instead, the only issue for the court to resolve is whether the disciplinary procedures used, resulting in the loss of time credit, comported with the minimum requirements of due process.
The federal and state constitutions guarantee that inmates cannot be deprived of liberty without the due process of law, Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Vandever v. Comm'r of Corr., 315 Conn. 231, 241, 106 A.3d 266 (2014). However, the very fact of lawful incarceration necessarily limns the contours of any liberty interest retained by a sentenced prisoner, Wolff v. McDonnell, supra. The United States Supreme Court delineated that due process only demands, with respect to loss of time credit, " (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 fact finder of the evidence relied on and the reasons for the disciplinary action, " Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
Under General Statutes § 18-98e(a), qualified inmates, such as the petitioner, can accumulate ERRC. However, the commissioner or the commissioner's designee may, in his or her discretion, cause the loss of all or any portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommend programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause; if such disciplinary process comports with " all procedural safeguards . . . at such hearings to insure due process of law, " General Statutes § 18-78a(b).
The court can take judicial notice that the Commissioner of Corrections has promulgated orders regulating the conduct of hearings to adjudicate contested DRs, colloquially known as " tickets, " C. Tait and E. Prescott, Connecticut Evidence (5th Ed. 2014) § 2.17.3, p. 126. These supervisory orders are embodied in the " Code of Penal Discipline, " Administrative Directives 9.5. The Code, inter alia, describes the roles and duties of the various participants in such proceedings.
The evidence presented at the habeas hearing confirmed the obvious reality of prison life that inmates cannot access much evidence on their own, and can only exercise their right to submit that evidence to the hearing officer through the auspices of prison personnel. Although constitutional considerations may not require it, the Code provides for the appointment of an advocate if the inmate requests one. Section 25 of the Code reads, in pertinent part:
Advocate . An advocate shall meet with the inmate at least 24 hours prior to the hearing, review all submitted documentation and evidence in accordance with the provisions of § § 31(E) and 31(G) of this Directive, assist the inmate in preparing a defense, and document his/her conclusions and recommendations using form CN 9508, Advocate Report. If the appointed advocate cannot appear at the hearing, another advocate may be appointed to assist the inmate, or for good cause, the hearing may be continued.
The petitioner received a DR because he falsely claimed that he accidentally fell down stairs when the crutches he obtained from medical personnel at the prison for a previous fall broke. As a result of the second fall, a " code white" alarm was invoked, and prison staff transported the petitioner to a hospital.
According to prison officials, the incident was video recorded, and their review of that recording showed that the purported fall appears staged and that the petitioner intentionally broke the crutches to enact this ploy. Both the doctor and nurse who dispensed the crutches to the petitioner reported that they were intact when given to him. The nurse also expressly cautioned the petitioner to avoid using the crutches on stairs. It was also noted that the second " fall" occurred shortly after staff had denied the petitioner use of the elevator.
The petitioner requested, in writing on the appropriate form, the assistance of an advocate. Correctional Counselor Rebecca Crandall was designated to fulfill that role. She met with the petitioner, reviewed the investigatory documents, spoke to the doctor and nurse, and interviewed another inmate, named Melendez. The petitioner informed Crandall that Melendez witnessed his fall and could corroborate his story. Melendez provided versions of the incident that were equivocal as to whether he merely heard the commotion or actually saw the petitioner's eccentric descent.
In his habeas petition, the petitioner allege a number of procedural irregularities surrounding the disciplinary hearing process that resulted in his punishment. However, because the court determines that one of his claims has merit and requires remand of the matter for a new disciplinary hearing, the court only addresses that dispositive issue.
As noted above, the petitioner sought and received the services of an advocate to assist him in presenting his defense at the disciplinary hearing. The right to such assistance was created by the Code of Penal Discipline, and § 25 of that Code indicates that if the appointed advocate cannot attend the hearing, a substitute advocate may be provided or, for good cause, the hearing may be postponed in light of that unavailability.
Ms. Crandall testified at the habeas hearing that she never attended the petitioner's hearing because she probably was on leave at the time. She also opined that she may have been unaware that a hearing was scheduled for that same reason. She pointed out that frequently the DHO scheduled hearings with only one or two days notice based on whether the DHO had other business at the correctional facility.
No advocate appeared at the hearing to assist the petitioner. Instead, Crandall's written report, dated May 7, 2013, was submitted by the investigating officer for the DHO's consideration at the hearing conducted on May 16, 2013. This left the petitioner to fend for himself despite his request and expectation for an advocate's assistance. The DHO ruled against the petitioner and imposed a loss of ten days ERRC for violation of the rules of conduct.
In the absence of statutory or regulatory provisions for an advocate, an inmate has no constitutional right to the assistance of an advocate to contest administrative disciplinary action. However, the adoption of a regulatory procedure that mandates such an appointment can create a due process right that would not otherwise exist, Teresa T. v. Ragaglia, 272 Conn. 734, 740-41, 865 A.2d 428 (2005). State agency rules " are given the force and effect of law, " Id., 751. " In evaluating whether a state has created a protected interest in the administrative context, we must determine whether the state statute or regulation at issue meaningfully channels official discretion by mandating a defined administrative outcome, " Id., 740. If an administrative feature or protocol is merely permitted, rather than required, the regulatory " scheme does not create entitlements that receive constitutional protection, " Id., 740-41.
In Teresa T. v. Ragaglia, supra, our Supreme Court recognized that the Department of Children and Families possessed the authority to remove children from hostile home environments on an emergency basis. But the statutes and regulations that conferred that authority did not obligate state officials to exercise that power, Id. Therefore, no procedural due process violated occurred when children suffered harm while remaining in dangerous family settings.
The burden rests on the inmate to demonstrate that a constitutionally protected liberty interest has been infringed by the actions or inactions of prison officials, Johnson v. Meehan, 225 Conn. 528, 547, 626 A.2d 244 (1993). Even so, it is possible for such a violation of due process to arise from the failure of prison staff to adhere to correctional rules and practices, Id.
The court concludes that the failure to appoint a substitute advocate or to postpone the petitioner's disciplinary hearing to accommodate that assistance comprises a due process violation enforceable through habeas corpus. As quoted above, § 25 of the Code of Penal Discipline, promulgated through Administrative Directive 9.5, specifically bestows upon an inmate accused of misconduct recourse to an advocate to " assist the inmate in preparing a defense." The petitioner elected to exercise the option offered to him and an advocate was appointed for that purpose. He was entitled to rely on that promise of assistance, but Counselor Crandall's absence left him in the lurch.
Of course, as an inmate, the petitioner had no independent access to the video recording or to inmate Melendez. Crandall never saw the recording nor did she request that the investigating officer play it during the disciplinary hearing because she was unaware of the hearing. The court holds that if by virtue of agency directives, prison officials offer an inmate use of an advocate to resist disciplinary punishment and the inmate chooses to accept that assistance, such assistance cannot be frustrated because of inconvenience similar to that which arose in the petitioner's case. The DHO had available by rule, the choice of postponing the hearing or substituting a new advocate and opted to do neither despite the petitioner's expressed desire for assistance. The habeas corpus petition is granted to the extent that the matter is remanded to the Department of Corrections for a new disciplinary hearing.