Opinion
NO. 2013-CA-001212-MR
06-13-2014
JOHN P. HOLLAND APPELLANT v. LEE M. FUSON AND KATHY LITTERAL APPELLEES
BRIEF FOR APPELLANT: Margaret Ivie LaGrange, Kentucky Meredith Krause Frankfort, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT COSTANZO, JUDGE
ACTION NO. 13-CI-00051
OPINION
REVERSING AND REMANDING
BEFORE: JONES, STUMBO, AND THOMPSON, JUDGES. JONES, JUDGE: Appellant John P. Holland, appeals from the Bell Circuit Court order dismissing his petition for declaration of rights. For the reasons more fully explained below, we reverse and remand for further proceedings consistent with this opinion.
I. BACKGROUND
At all relevant times, Holland, an inmate of the Kentucky Department of Corrections ("KDOC"), was incarcerated at the Bell County Forestry Camp in Pineville, Kentucky. In September 2012, he was accused of conspiring with two other inmates to leave the facility to go get tobacco that was hidden nearby. The institution commenced an internal investigation that culminated in a confidential informant implicating Holland in the alleged plot. The investigating officer indicated in his report:
During the investigation it was determined through reliable information that Inmate Holland had conspired with others to make a tobacco run off the institutional grounds. Also through reliable information inmate Holland aided in the tobacco run, due to being seen giving directions to where the tobacco was hidden at the beginning of the entrance road and HWY 190 intersection.
The report does not provide any information with respect to how the investigating officer determined the informant's reliability or that any of the information provided by the informant was independently corroborated.
Holland was charged and came before the Adjustment Committee for a hearing. The Adjustment Committee found Holland guilty of an inchoate violation of escape. It stated in its decision that "the information provided by the confidential information to be reliable based on the witness statement, that Inmate Holland was heard giving directions as to where the tobacco was located off institutional grounds at HWY 190." The Adjustment Committee "imposed a penalty of 180 day good time loss along with 60 days good time suspended and 90 days disciplinary segregation time."
Holland appealed the Adjustment Committee's findings to the Warden. The Warden concurred with the Adjustment Committee's finding of guilt stating: "the report is the summary of confidential information. Due process appears in order and the decision is supported by the evidence."
Holland filed a petition for declaration of rights in the Bell Circuit Court arguing that the Department of Corrections' determination of guilt was not supported by "some reliable information" where the information obtained from the confidential informant was not corroborated and there was no indication that the confidential informant had a history of past reliability. Holland further argued that the complaint against him failed to meet the Due Process requirements of notice. The Department of Corrections moved to dismiss the complaint. The trial court summarily granted the motion without a hearing.
This appeal followed.
II. ANALYSIS
A. Protected Liberty or Property Interest
Without a protected liberty or property interest, a prisoner cannot successfully maintain a claim under the Due Process Clause. "Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement." Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct.1741, 1748, 75 L.Ed.2d 813 (1983). Thus, the first issue we must decide is whether Holland asserted a cognizable due process claim.
With respect to constitutional due process protections, the Fourteenth Amendment's Due Process Clause does not protect every change in the conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) ("[T]o hold ... that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.") Rather, a prisoner is entitled to the protections of the Due Process Clause only when the alleged deprivation imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995).
Holland's disciplinary proceeding resulted in disciplinary segregation and revocation of good-time credits. Standing alone, placement in segregation is not enough to trigger due process protection because such a placement does not impose any atypical or significant hardship on the prisoner. Id. However, revocation of earned good-time credits is a different matter. See Marksberry v. Chandler, 126 S.W.3d 747, 752 (Ky. App. 2003). Where a state has created a right to good-time credit that shortens a prison sentence and provides that the credit is revocable only upon an inmate's serious misconduct, he has an interest of "real substance" subject to procedural due process protection. See Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974). Here, Holland's disciplinary proceeding resulted in the revocation of good-time credit. As such, we have no difficulty concluding that Holland has alleged an interest protected by the Due Process Clause.
Having concluded that Holland was entitled to some process under the Due Process Clause, we must next determine how much process he was due under the circumstances.
B. Process Due Holland
It is well settled 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." Wolff, 418 U.S. at 556, 94 S.Ct. at 2975. When a protected liberty or property interest is at stake a prisoner is entitled to: "(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." Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 1055 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985). "The due process requirements set out in Hill have been recognized and applied in Kentucky." Webb v. Sharp, 223 S.W.3d 113, 118 (Ky. 2007).
Nonetheless, unlike in a criminal proceeding, due process does not require that a guilty finding in a prison disciplinary proceeding be supported by evidence establishing guilt beyond a reasonable doubt or even substantial evidence. Rather, due process dictates simply that in establishing guilt, the disciplinary body must rely on "some evidence" it has determined to be reliable. Hill, 472 U.S. at 454-57, 1055 S.Ct. at 2773-75.
On appellate review, ascertaining whether the "some evidence" standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Id. at 456, S.Ct. at 2774. Rather, the applicable question for the appellate court is simply whether the circuit court correctly determined there to be "some evidence" that the fact-finder reasonably relied upon in determining guilt. Houston v. Fletcher, 193 S.W.3d 276, 279 (Ky. App. 2006). A reviewing court must also determine whether the fact-finder's written findings indicate that he or she independently assessed the reliability of the evidence relied upon. Haney v. Thomas, 406 S .W.3d 823, 826 (Ky. 2013).
While a prisoner has a due process right to call witnesses and produce evidence, it is not an unfettered right. Rather, the prisoner's rights must be balanced against the legitimate institutional needs of assuring safety and control of inmates. Hill, 472 U.S. 445, S.Ct. at 2769. The KDOC should not be required to make available to inmates information that seems, in the judgment of prison officials, likely to compromise the security of other inmates or the ability of the prison to conduct further investigatory activity. Deference to the KDOC's judgment on this point is demanded by the legitimate concern of maintaining order and safety in the prison environment.
To the extent that information endangers another inmate, an officer, or compromises the overall security of the prison, the accused inmate has no due process right to that information. See Stanford v. Parker, 949 S.W.2d 616, 617 (Ky. App. 1996) ("There was no violation of appellant's due process rights in the refusal to reveal information which prison officials deemed confidential."). Thus, Holland did not have a right to the investigatory report
Nevertheless, the Adjustment Committee had an obligation to review the report and make an independent determination regarding the credibility of the information contained therein and to indicate its reasons for determining the information to be reliable in its written findings. Haney, 406 S.W.3d at 823.
In Haney, a prison disciplinary committee found Thomas, an inmate, guilty of hitting another inmate. Id. at 824. In its written report, the Adjustment Committee stated that it relied on "the confidential information received from Lieutenant Gribbins, [which] the Committee ... believed to be true in accordance to policy." Id. Thomas maintained that his conviction violated his due process rights because there was no written statement from the fact-finder regarding the reliability of the evidence. Id. at 825. The Court of Appeals agreed with Thomas. Id.
The Kentucky Supreme Court accepted discretionary review to consider "what amount of particularized findings must the Adjustment Committee make in order for the 'some evidence' standard to be met while also protecting the safety and security of inmates who become witnesses." Id. at 826. The Court observed that when the supporting evidence is not supplied to the reviewing court nor discussed in the Adjustment Committee's findings, appellate courts are placed in the untenable situation of "rubber stamping an arbitrary determination." Id. "If the Adjustment Committee simply accepted the investigating officer's conclusion as true, it would be 'merely recording the findings made by the investigating officer.... To proceed in that fashion is not fact finding. It is recordkeeping.'" Id. at 827 (quoting Hensley v. Wilson, 850 F.2d 269, 276 (6th Cir.1988)).
The Court explained that it was not unreasonable to require "prison administrators to simply state for the record, without divulging identities why witnesses are reliable." Id. at 828. The Court ultimately concluded that to comport with due process, the Adjustment Committee must cite to some corroborating factors in its written decision that establish the reliability of the internal investigatory report. Id. The Court then provided a non-exhaustive list of methods the Adjustment Committee might use to establish reliability without jeopardizing the prison's legitimate concerns of safety and confidentiality. Id. at 827-28. For example, the Adjustment Committee could cite in its findings that it: 1) placed the investigating officer under oath and received his testimony; 2) relied on corroborating testimony and evidence; 3) had firsthand knowledge of the sources of the information and considered them reliable based on past experience; 4) conducted an in camera review of the investigator's report and found the report and the investigator to be reliable; or 5) relied on underlying factual information. Id.
Regardless of the method of corroboration, the Court held that the record should divulge some "corroborating factors" relied upon by the Adjustment Committee in reaching its decisions. Id. Ultimately, the Court held that: "[a] simple statement in the Adjustment Committee's findings that 'the Committee believes the information is credible and the information reliable' is not enough to satisfy the some evidence standard." Id. at 828.
The Adjustment Committee in this case, much like the Adjustment Committee in Haney, simply stated that it found that the information was reliable because the confidential informant provided the information that he saw Holland giving directions and the investigating officer recorded that information in his report. The Adjustment Committee stated specifically that it found "the information provided by the confidential information to be reliable based on the witness statement, that Inmate Holland was heard giving directions as to where the tobacco was located off institutional grounds at HWY 190." The witness, however, is the confidential informant. This is tantamount to finding the statement to be self-corroborating. There is no indication that the Adjustment Committee made an independent assessment of reliability. We agree with Holland that where the only evidence in the record is the confidential informant's statement, the sole basis for deeming the confidential informant reliable cannot be the statement itself.
In this case, there was no other evidence introduced to support the charges against Holland. Specifically, the reporting officer stated in his initial report that he had no personal knowledge of the incident, but that he was relying on the information of a confidential informant that stated Holland had been heard giving directions to two other inmates as to where the tobacco was located. In regards to the reliability of the confidential informant, the officer stated "I have determined by the use of confidential information that has been deemed reliable." The officer, however, never identifies his basis for concluding that the informant was reliable.
While the "some evidence" standard is a deferential one, there must be a contemporaneous written record from which a reviewing court can determine that the administrative body made an independent assessment of reliability. Id. The Adjustment Committee's findings amount to simply a conclusion that the confidential informant identified Holland as having provided directions to the tobacco and that, based on the fact that the statement is included in the officer's investigation report, it is reliable. This is insufficient under Haney.
The Adjustment Committee did not make the independent findings of reliability required by our Supreme Court in Haney. To affirm the circuit court's dismissal in the absence of such findings would be to rubber stamp what appears objectively to be an arbitrary determination of guilt wherein the Adjustment Officer "adjudged the inmate guilty simply because the investigating officer says he or she is guilty." Haney, 406 S.W.3d at 826.
We realize that the circuit court did not have the benefit of the Supreme Court's guidance in Haney when it rendered its decision. The circuit court rendered a dismissal order in June 2013; Haney was not designated as final until September 19, 2013.
The written finding of guilty in this case is constitutionally insufficient under Haney. At a minimum, the Adjustment Committee should have explained why it deemed the evidence contained in the investigatory report to be reliable; in other words, why it believed the information supplied by the confidential informant to the investigating officer was reliable. Haney, 406 S.W.3d at 825-28. Because the record fails to explain why the Adjustment Committee deemed the information provided by the confidential informant to be reliable, we conclude that Holland was denied the procedural process he was due.
Therefore, we must reverse the circuit court's order dismissing Holland's petition and remand this action. On remand, the Adjustment Committee must independently assess the reliability of any evidence put before it, indicate on the record that it has done so, and, if it deems the evidence reliable, articulate the basis for that determination. We note, however, that we are not requiring the Adjustment Committee to reach a different outcome or render detailed, comprehensive findings of fact. The written conclusion and findings, however, should indicate some minimal, independent indicia of reliability. As it currently stands, the Adjustment Committee's finding of guilt does not comply with the minimal process due Holland.
As set forth above, we reverse and remand for further proceedings in conformity with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Margaret Ivie
LaGrange, Kentucky
Meredith Krause
Frankfort, Kentucky
BRIEF FOR APPELLEE: Angela T. Dunham
Frankfort, Kentucky