Opinion
NO. 2015-CA-001913-MR
03-03-2017
JOHN TILLMAN APPELLANT v. ALAN BROWN, WARDEN, GREEN RIVER CORRECTIONAL COMPLEX APPELLEE
BRIEF FOR APPELLANT: John Tillman, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEE: Edward A. Baylous II Justice & Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 15-CI-00297 OPINION
AFFIRMING
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BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES. ACREE, JUDGE: John Tillman, pro se, appeals the order of the Muhlenberg Circuit Court dismissing his petition for a declaration of rights. We conclude that the decision of the Adjustment Officer (AO) is supported by sufficient evidence to support the decision. Therefore, we affirm.
Relevant Facts
Tillman received $100 in his inmate account from his mother, Carolyn Tillman (Carolyn). Tillman acknowledges that the money originated with Becky Morris, but he claims Becky is "[a] close friend." He never explains why the money was sent through his mother rather than directly from his close friend to him. An internal investigation revealed a different explanation for the transfer of funds.
In his brief, Tillman refers to Becky Morris as Becky Watkins; the documentary evidence in the record identifies her as Becky Morris.
Becky had been the girlfriend of another inmate, David Combs. Combs had pleaded with Becky in emails and by telephone to get money to Tillman's mother and he referred to this money as "interest." He was desperate to have the transfer go through, saying at one point it needed to be done "tonight" or he would "end up in the hole over this[.]" Eventually, Becky sent a money order to Tillman's mother and Combs asked Becky, "[H]ey[,] screenshot the stub of that and send it to me now please[.]" She complied.
Initially at least, Combs had a different story to tell than Tillman. He knew his email communications were monitored, so he concocted a ruse that the funds he sought from Becky were for magazines; he even said "the magazine company told my dad that they won[']t send the backorders til [sic] they receive payment." But the screenshot of the money order showed it was made payable to Tillman's mother, not a magazine company.
Other evidence in the record explains Combs' reference to ending up "in the hole." Said the AO, "Committing a rule infraction and being sent to the Special Management Unit is a common strategy to avoid retribution for unpaid debts by inmates." Tillman denied any involvement. Nevertheless, based on these monitored communications, charges were brought against Tillman for "loan sharking or collecting or incurring debts" in violation of CPP 15.2(II)(C)(V)(4).
Kentucky Correctional Policies and Procedures.
On May 8, 2015, Tillman was found guilty of the charge. The AO's written findings of fact were as follows:
Inmate John Tillman # 175944 was present at the hearing with Legal Aide Garland Dean #104318. Confidential information used in the hearing is found to be credible based on system printouts confirming statement[s] made by witnesses. Inmate Tillman testified that he did receive a 24 hour notice prior to the hearing, a copy of this report and did have ample time to speak with a Legal Aide. Inmate Tillman plead [sic] NOT GUILTY. I find that Inmate Tillman did commit the category 5-4 offense (loan sharking, collecting or incurring debts) based on:
1) UA II Ford's statement that an IA investigation concluded that Inmate Tillman had been collecting debt owed to him by Inmate Combs.
2) Inmate Tillman's statement in the hearing that he has given Inmate Combs coffee and a few other canteen items in the past.
3) UA II Ford's statement in the investigation that Inmate Tillman was loaning another inmate money and was collecting on the debt.
Tillman was sentenced to sixty days' disciplinary segregation and forfeited sixty days of nonrestorable good time. In Tillman's appeal of the decision to Warden Alan Brown, Tillman again stated that he had not been involved in any illegal activity. Brown denied Tillman's appeal.
The disposition of Tillman's appeal to Brown is not included in the record. Obviously, however, Brown denied the appeal or this Court would not be undertaking a review.
Tillman filed a petition for a declaration of rights in the Franklin Circuit Court on July 7, 2015. The matter was later transferred to Muhlenberg Circuit Court by Franklin Circuit Court Order dated August 19, 2015. On November 5, 2015, the Muhlenberg Circuit Court dismissed Tillman's action on the grounds that "some evidence" supported the Adjustment Officer's finding. This appeal follows.
Standard of Review
"Minimal due process is all that is required regarding a person detained in lawful custody." McMillen v. Kentucky Dep't. of Corrections, 233 S.W.3d 203, 205 (Ky. App. 2007). In order to satisfy this standard, the United States Supreme Court has stated that procedural due process requires: "(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 action." Superintendent, Mass. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985). These due process requirements are generally met "if some evidence supports the decision by the prison disciplinary board." Id., 472 U.S. at 455, 105 S. Ct. at 2769. Our Supreme Court has noted that the "some evidence" standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of evidence." Webb v. Sharp, 223 S.W.3d 113, 118 (Ky. 2007) (quoting Walpole, 472 U.S. at 455, 105 S.Ct. 2768). Instead, the "relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. (quoting Walpole, 472 U.S. at 455-56, 105 S.Ct. 2768).
Analysis
Tillman argues that the AO erred when she denied him access to evidence used against him. That evidence is the "[c]onfidential information" referenced in the AO's findings of fact. Tillman presumes such information must have been provided by a confidential informant. Based on that underlying presumption, he argues the AO erred either by: (1) failing to provide him with the confidential information relied upon, or explain why it was not provided, as required by Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014); or (2) failing to "set forth the reasons he determined the informant(s) to be reliable[.]" Foley v. Haney, 345 S.W.3d 861, 864 (Ky. App. 2011).
Tillman failed to raise this issue during the administrative process. Generally, "[t]he failure to raise an issue before an administrative body precludes a litigant from asserting that issue in an action for judicial review of the agency's action[.]" O'Dea v. Clark, 883 S.W.2d 888, 892 (Ky. App. 1994). However, the Commonwealth failed to raise waiver as a defense in the declaration of rights action; the effect is that the Commonwealth has waived the ability to argue Tillman waived the objection. "[A] party's failure to timely assert an affirmative defense waives that defense." American Founders Bank, Inc. v. Moden Investments, LLC, 432 S.W.3d 715, 722 (Ky. App. 2014) (citing Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 485 (Ky. 2009); CR 8.03). Therefore, we will consider the argument.
Both of Tillman's arguments are unfounded.
First, the AO provided to the circuit court an affidavit that attached the confidential information upon which she relied. As the AO's findings stated, the confidential information consisted of "system printouts confirming statement[s] made by witnesses[.]" Those printouts were intercepted email communications of another inmate, Combs. The printouts corroborated the statements of the persons engaged in those communications.
Second, as the AO's affidavit to the circuit court also stated, "No information from confidential informants was used as evidence to support my decision." Tillman's presumption that a confidential informant was involved was erroneous.
Tillman spends the remainder of his brief asserting that the AO should have believed his version of the events. We are not persuaded by that story either.
We have examined the evidence presented in this case and are convinced that there was more than "some evidence" to support the charges against Tillman.
Conclusion
The Muhlenberg Circuit Court's order dismissing Tillman's declaration of rights petition is affirmed.
THOMPSON, JUDGE, CONCURS.
LAMBERT, J., JUDGE, DISSENTS AND FILES SEPARATE OPINION.
LAMBERT, J., JUDGE, DISSENTING: Respectfully, I dissent. I agree with the majority that "some evidence" existed in the record absent the confidential computer printouts relied upon by the AO. I would still reverse, however, because our Supreme Court has held that it is immaterial whether "some evidence" exists in the record when an AO violates an inmate's due process right to present exculpatory evidence:
[I]t is difficult to say the evidence against Ramirez fails to satisfy the "some evidence" standard. The investigating officer concluded that Ramirez participated in the fight, and the AO who heard the evidence adopted the investigating officer's report by reference. Although the evidence presented against Ramirez is not very detailed, prison disciplinary cases do not require "evidence that logically precludes any conclusion but the one reached by the disciplinary board." At least arguably, there was evidence presented to support the finding of discipline against Ramirez. But any examination for due process must amount to more than a glance. Looking deeper here, the mechanism through which "some evidence" may ultimately have been presented against Ramirez was fundamentally flawed. Relying on the existence of "some evidence" to indicate due process is satisfied becomes a fallacy if the evidence was produced in a constitutionally deficient proceeding. Today, we attempt to rectify these deficiencies going forward.Ramirez v. Nietzel, 424 S.W.3d 911, 917 (Ky. 2014) (emphasis added) (footnote omitted).
Cf. Dixon v. Bottom, 497 S.W.3d 258, 261 (Ky. App. 2016) (noting "some evidence" existed in the record but that the inmate did not request documentary evidence).
Our Supreme Court considered whether an AO may deny an inmate the opportunity to view security camera footage without providing the inmate a justification in Ramirez. Id. at 919-20. The court concluded that there was no unlimited right for the inmate to view the footage, although the AO must review the footage and provide a justification for denying the inmate access to that evidence. Id. Furthermore, "the justification offered by the AO for denying the inmate access to the documentary evidence must be logically related to preventing undue hazards to institutional safety or correctional goals." Id. at 920 (internal quotation marks omitted). The rule our Supreme Court provided in Ramirez prevents both fishing expeditions (as it applies only to evidence against an inmate) and prison security concerns (as the AO may deny the inmate the right to review that evidence if there is a sufficient prison security-related reason). This Court expanded Ramirez's holding to include audio recordings in Mobley v. Payne, 484 S.W.3d 746, 751 (Ky. App. 2016). I would also apply Ramirez to printed documentary evidence, such as the kind used against Tillman.
In the present case, the AO clearly relied upon computer printouts in determining Tillman's guilt, as the AO referenced them specifically in her report. Tillman stated in his brief that he asked for a summary of the confidential information used against him and that this was denied without explanation. Although the Justice & Public Safety Cabinet provided a potential reason to the circuit court why Tillman was denied a review of the printouts, the record does not reflect whether anyone provided one to Tillman during the administrative process. Without any finding in the record, we cannot determine whether the AO complied with Ramirez; I would require AOs to make a finding on the record to ensure that prison officials had a justification for prohibiting the inmate from reviewing the evidence used against him. Furthermore, I believe that allowing the Justice & Public Safety Cabinet to promulgate potential reasons for denying the inmate access to evidence in hindsight does not comport with Ramirez. "[T]he justification offered by the AO for denying the inmate access to the documentary evidence must be logically related to preventing undue hazards to institutional safety or correctional goals." Ramirez, 424 S.W.3d at 920 (emphasis added) (footnote and internal quotation omitted).
Tillman most likely did not realize that the confidential information was collected in several computer printouts, because he had no way of knowing the nature of the confidential information. I construe Tillman's request for that information as a request to review those documents, as those documents contained the confidential information used against him. I also note that the AO's report does not reflect Tillman's request. The inmate, of course, has no control over the information included in the AO's report. --------
To be sure, there is a substantial likelihood that there would have been a security-related reason for denying Tillman the opportunity to review the computer printouts. However, because Tillman requested computer printouts that the AO relied upon in her determination of Tillman's guilt, and because Tillman was denied that evidence without an explanation in the record, I would hold that the AO violated Tillman's right to present exculpatory evidence under Ramirez and reverse.
For these reasons, I dissent. BRIEF FOR APPELLANT: John Tillman, Pro Se
West Liberty, Kentucky BRIEF FOR APPELLEE: Edward A. Baylous II
Justice & Public Safety Cabinet
Frankfort, Kentucky