Opinion
CV154007408S
05-03-2018
Troy SULSER (Inmate #313375) v. WARDEN
UNPUBLISHED OPINION
OPINION
Mullarkey, J.T.R.
The petitioner, Troy Sulser, initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on August 3, 2015. The pro se petition, which has not been amended, alleges that the petitioner’s incarceration is illegal because he was issued a frivolous and vindictive disciplinary report by the Department of Correction (DOC). The petitioner further alleges that his due process rights were violated and that DOC imposed excessive sanctions. The respondent’s return denies the petitioner’s allegations and asserts as defenses that the petitioner has failed to state a claim for which relief may be granted, that he has been provided consistent and appropriate medical care, and that DOC has not been deliberately indifferent to his medical needs.
The petitioner has not alleged that his medical care is inadequate. Thus, these " defenses" are not responsive to the petitioner’s claims.
The parties appeared before the court for a trial on the merits. For the reasons articulated more fully below, the petitioner’s claims are denied.
FINDINGS OF FACTS
Trial was held on two dates, March 9th and April 12th, 2018. Four witnesses testified. The petitioner’s application for a writ of habeas corpus attacks a Class A Disciplinary Report (DR) he received on September 4th, 2014, and the subsequent disciplinary process. The respondent’s motion to dismiss was not granted because it is based on a claim that the petitioner " voluntarily" pleaded guilty to the DR. That issue of voluntariness was a key issue in the habeas trial.
The DR charged the petitioner with interfering with safety or security. (Exhibit A, p. 3.) DOC Administrative Directive 9.5(12)(Q) defines the offense of interfering with safety or security as: " Interfering with, resisting or obstructing the execution of a staff member’s official duties." (Exhibit 4, p. 10.) The description of the violation contains the following: " On 09-04-14 at 8:17 p.m. a code white was called ... involving Inmate Walden ... resulting in his current cell partner Inmate Sulser ... to exit his cell and be placed in the Quiet Room during the recall of the unit. During this process Inmate Sulser ... exited the Quiet Room multiple times agitated yelling that he demands to speak to a supervisor. His actions required my attention and detracted from my ability to secure the unit and open the appropriated doors needed for responding staff ..." (Exhibit A, p. 3.) The DR report indicates that the petitioner received notice of the DR and pleaded guilty. Id., pp. 3-4.
The Disciplinary Process Summary Report reflects that a review was conducted on September 8, 2014, four days after the incident and DR. (Exhibit A, p. 1.) The petitioner was found guilty and given several sanctions: four days punitive segregation; 15 days loss of recreation; 20 days loss of privileges; and a forfeiture of 10 days of Risk Reduction Earned Credits (RREC). Id. The basis for these sanctions is identified as deterring future misconduct. Id., p. 2.
Harold Walden, petitioner’s cellmate, testified that he suffered a medical emergency when the breathing apparatus in his throat malfunctioned. He pushed the emergency call button repeatedly. He testified that nobody responded and that he was unable to get the attention of a correction officer passing the cell he shared with the petitioner. Walden stated that he had trouble breathing, got dizzy, and passed out. He witnessed no subsequent events.
Inmate Randall Licari testified that he was working as a janitor outside the cells in Block 1-L. He saw Walden on the floor and yelled to a correction officer to get some help. He further testified that the correction officers were not in active response before he alerted them but after his alert a medical code call came over the loudspeaker. Licari testified to the petitioner’s positive demeanor and work ethic as a Certified Nursing Assistant (CNA). He was never interviewed about the incident by DOC investigators.
Captain Claudio testified variously about DOC procedures and the facility in question. She was not present for the incident on September 4, 2014, but testified to her review of the video of the incident and her interview with the petitioner. Since there was no disciplinary hearing the video was not preserved. Neither side inquired as to the video’s contents. Captain Claudio testified that the petitioner was remorseful for his belligerence during her interview with him. She did not recall if the petitioner mentioned Randall Licari and she did not interview him. Licari was not mentioned in the reports. (Exhibit C.)
The petitioner testified to his actions in trying to help his cellmate and actions seeking help for him. The petitioner testified to his timeline concerning the emergency and his anxiety about getting emergency aid for his cellmate of eight years. He admitted to violating three DOC rules: 1) battery (physical contact with cellmate); 2) striking the cell door; and 3) communicating with inmate Licari. He claimed: " That which is necessary is legal." Petitioner was not disciplined on any of the three grounds. (Exhibit A.)
The petitioner testified that he did raise his voice to Correctional Officer (CO) Bard only because Bard could not hear him over the noise. He indicated that he entered a guilty plea because in his only other disciplinary action a not guilty plea resulted in thirty-three days in segregation before resolution. The petitioner also testified that he is the object of a vendetta by Lt. Gordreault going back to an earlier incident. (Exhibit 6.) He further claimed that he left the job he loved as a CNA to make contact with Lt. Gordreault less likely and more public after the Lieutenant threatened that he would not forget what had happened and would be there when the petitioner " slipped up."
The petitioner’s earlier disciplinary report (Exhibit 6) was generated by a nurse in the infirmary and did not involve conduct against the nurse or any correctional officer. The disciplinary report at issue in this trial was witnessed by CO Bard and was based on disruptive, disobedient behavior. Again, no injury or assault against DOC personnel was alleged in the disciplinary report. The fact that both reports, generated nearly seventeen months apart, were signed off on by the same supervisor, Lt. Gordreault, is not more than institutional coincidence unless the petitioner’s testimony about that Lieutenant’s alleged threat is credible enough to meet his burden. The second disciplinary report was generated by CO Bard. (Exhibit A.) The Lieutenant’s report begins with his observations after he entered the block after the code white had been called and along with the confusion caused by the number of responders may explain the discrepancy between the two: was the petitioner in the " quiet room" or TV room?
DISCUSSION
" In order to state a claim for a denial of procedural due process ... a prisoner must allege that he possessed a protected liberty interest, and was not afforded the requisite process before being deprived of that liberty interest ... A petitioner has no right to due process ... unless a liberty interest has been deprived ..." (Citations omitted; internal quotation marks omitted.) Coleman v. Commissioner of Correction, 111 Conn.App. 138, 141, 958 A.2d 790 (2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009).
" 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, [courts] 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 ... Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security ..." Vandever v. Commissioner of Correction, 315 Conn. 231, 244, 106 A.3d 266 (2014), citing and quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983).
The due process requirements may be informal, nonadversarial and occur after a determination has been made by DOC. Hallmarks of required due process in a prison setting are notice of the action being considered by corrections officials and a meaningful opportunity to respond, whether in writing or by personally presenting an inmate’s position to correction officials at a hearing. Additionally, the decision by correction officials must be based on some evidence, even a modicum of evidence, and not be purely arbitrary. Vandever v. Commissioner of Correction, supra, 315 Conn. 244-45.
" ‘In a variety of contexts, [including the prison context] the [United States Supreme] Court has [also] recognized that a governmental decision resulting in the loss of an important liberty interest violates due process if the decision is not supported by any evidence.’ Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); see also Taylor v. Rodriguez, [ 238 F.3d 188, 194 (2nd Cir. 2001) ] (when inmate has liberty interest in avoiding transfer to more restrictive conditions of confinement, decision to transfer must be supported by ‘some evidence’). This standard is a lenient one, requiring only ‘a modicum of evidence’ to support the challenged decision. Superintendent v. Hill, supra, at 455, 105 S.Ct. 2768. ‘Ascertaining 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., at 455-56, 105 S.Ct. 2768; see also Castro v. Terhune, 712 F.3d 1304, 1314 (9th Cir. 2013) (characterizing test as ‘minimally stringent’ " ). Vandever v. Commissioner of Correction, supra, 315 Conn. 245.
" If the court were to afford due process protection to every substantial deprivation suffered by prisoners, ... that would risk subjecting to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the ... courts." (Emphasis in original.) Anthony A. v. Commissioner of Correction, 326 Conn. 668, 677, 166 A.3d 614 (2017), citing and quoting Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). See also State v. Fernandez, 254 Conn. 637, 656, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001) (" It is not within the province of the judiciary to micromanage prisons" ); Washington v. Meachum, 238 Conn. 692, 733-34, 680 A.2d 262 (1996) (" Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody" ).
Although the petitioner asserts that he was effectively forced to plead guilty to the disciplinary violation, his habeas testimony admitted that he violated several disciplinary rules. The petitioner’s failure to call Lt. Gordreault, CO Bard or CO Rodriguez (Exhibit C, p. 11), along with his failure to cross examine Captain Claudio, lead this court to find that he has failed to meet his burden of proof. While the petitioner appears sincere in his belief that his actions out of his cell were justified, he downplays their seriousness when measured against the weight of credible evidence produced.
All the hallmarks of due process are present in this case. The petitioner received notice of the disciplinary offense he was charged with, and he was given a meaningful opportunity to respond, though that was obviated by his guilty plea. The decision by correction officials is based on at least a modicum of evidence and is not purely arbitrary. Vandever v. Commissioner of Correction, supra, 315 Conn. 244-45. Consequently, the court concludes that the petitioner has failed to meet his burden of proof by showing that his right to due process has been violated.
CONCLUSION
Based upon the foregoing, the court denies the petition for a writ of habeas corpus. Judgment shall enter for the respondent.
It is so ordered.