Opinion
NO. 2013-CA-001046-MR
06-27-2014
JOSHUA CALDWELL APPELLANT v. WARDEN DON BOTTOM APPELLEE
BRIEFS FOR APPELLANT: Joshua Caldwell Burgin, Kentucky BRIEF FOR APPELLEE: John Marcus Jones Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 13-CI-00046
OPINION
VACATING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. DIXON, JUDGE: Appellant, Joshua Caldwell, appeals pro se from an order of the Boyle Circuit Court dismissing his petition for a declaration of rights pursuant to KRS 418.040. For the reasons set forth herein, we vacate the circuit court's order and remand the matter for further proceedings consistent with this opinion.
At all times relevant herein, Appellant was an inmate at the Northpoint Training Center. On November 29, 2012, Correctional Lieutenant Tracey Nietzel completed an investigation of Appellant's involvement in the theft of property from the prison's receiving and discharge area. Lieutenant Nietzel stated that her investigation revealed that Appellant had accessed and altered inmate files and property sheets, allowing various inmates to steal canteen items. Lieutenant Nietzel provided Appellant with the write-up and summary of her investigation, as well as forwarded the full investigatory report to the adjustment officer. Following a review of Lieutenant Nietzel's findings as well as an additional follow-up investigation by another corrections officer, Appellant was charged with an inchoate infraction related to the theft or possession of stolen goods over $100.
On December 12, 2012, Appellant's case was heard by an adjustment officer. In his subsequent report, the adjustment officer found Appellant guilty, stating that the information gathered during Lieutenant Nietzel's investigation was "sufficient." The adjustment officer imposed a sentence of 60 days good time loss with 60 days disciplinary segregation, suspended for 180 days. Appellant thereafter appealed the finding to Warden Bottom who determined that the decision was supported by the evidence and that the penalty was appropriate.
On February 4, 2013, Appellant petitioned the Boyle Circuit Court for a declaration of rights pursuant to KRS 418.040, arguing that he was denied due process during the adjustment hearing. Specifically, Appellant claimed he was denied access to the "sufficient evidence" gathered by Lieutenant Nietzel during her investigation. On March 25, 2013, the circuit court dismissed the petition finding that the adjustment officer's decision was supported by "some evidence." This appeal ensued.
It is well settled that prison disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights afforded to a criminal defendant are not afforded to an incarcerated inmate facing prison disciplinary charges. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). The inmate's interest in the procedural protections required by due process must be balanced against the legitimate institutional needs of assuring safety and control of inmates, avoiding burdensome administrative requirements and preserving the disciplinary process as a means of rehabilitation. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). When a disciplinary hearing may result in loss of good-time credits, the inmate 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. Walpole, 472 U.S. at 454, 105 S.Ct. at 2773.
In prison disciplinary matters, we only review the record for whether "some evidence" exists to support the adjustment committee's decision. Webb v. Sharp, 223 S.W.3d 113 (Ky. 2007); Smith v. O'Dea, 939 S.W.2d 353, 358 (Ky. App. 1997). In layman's terms, the "some evidence" standard is a standard that requires a very low threshold of evidence. In Superintendent, Mass. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985), the United States Supreme Court held that when determining whether there was "some evidence," the analysis "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of 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. In other words, this "court seeks not to form its own judgment, but, with due deference, to ensure that the agency's judgment comports with the legal restrictions applicable to it." Smith, 939 S.W.2d at 355.
On appeal, Appellant argues that he was denied the opportunity to defend himself against the charges due to Appellee's failure to disclose the evidence against him. Appellant points out that although Lieutenant Nietzel's initial write-up does not refer to a confidential informant, it must be assumed that she relied on such since he was not provided access to any of her investigation. Accordingly, Appellant contends that the adjustment officer failed to comply with the verification requirements for confidential information.
The Commonwealth responds that all due process requirements were satisfied because the circuit court found that there was "some evidence" to support the adjustment officer's decision. Further, the Commonwealth relies on the decision in Gilhaus v. Wilson, 734 S.W.2d 808 (Ky. App. 1987), in arguing that prison officials herein were justified in withholding the evidence from Appellant due to prisoner safety.
In Gilhaus, the appellant had been found guilty in a prison disciplinary proceeding of extortion, blackmail or making threatening statements based upon information provided to prison officials from confidential informants. On appeal, the appellant alleged that his due process rights were violated because the notice of the charges against him was so general that he was unable to prepare a defense. However, a panel of this Court determined that the additional information the appellant sought would have enabled him to identify the confidential informants. The panel noted,
Unfortunately, violent crime directed at other inmates is a common occurrence in our prisons today. Revealing the names of informants could lead to the death or serious injury of some or all of them and in the long run would dry up the supply of informants, allowing extortion to persist unchecked. In our judgment, the costs outweigh the benefits of giving Gilhaus more detailed information to prepare his defense. Thus, the notice he received was consistent with due process. See McCollum v. Miller, 695 F.2d 1044 (7th Cir.1982).Gilhaus, 734 S.W.2d at 810.
However, the Commonwealth fails to recognize a critical distinction between Gilhaus and the facts herein. In Gilhaus, the panel stated,
Gilhaus argues that the committee did not make a determination that the confidential informants were trustworthy as required by Goble v. Wilson, 577 F.Supp. 219 (W.D.Ky.1983). We find that such a determinationId. at 810.
was made. The committee found Gilhaus guilty based on the statements of confidential informant[s] and documents which support the statements. The incident report further verifies the trustworthiness of the informant[s] and it is printed on the same page with the Adjustment Committee findings. The report states that the declarations of the informant[s] were confirmed by polygraph examinations. The verification procedure need not be comprehensive, the committee need only include some reference to verification. Goble, 577 F.Supp. at 220. Thus, we find that the reliability and trustworthiness of the informant[s] are sufficiently verified.
The verification requirement was more recently reiterated in Foley v. Haney, 345 S.W.3d 861 (Ky. App. 2011), wherein a panel of this Court noted that Kentucky Corrections Policies and Procedures (KCPP) require that before confidential information is used, a hearing officer must make a determination that the informant(s) is reliable:
Reliability can be determined "by a record of past reliability or by other factors that reasonably convince the adjustment officer or committee of the confidential informant's reliability." KCPP 9.18(II)(D)(6)(a). In determining reliability, the hearing officer can consider the frequency with which the informant has provided information, the time period during which information has been provided, the accuracy of information provided, or other factors that tend to show reliability. KCPP 9.18(D)(II)(6)(b). Once a determination as to reliability has been made, the hearing officer must include in his report the basis for that finding. KCPP 9.18(D)(II)(7).Foley, 345 S.W.3d at 864-65. See also Hensley v. Wilson, 850 F.2d 269, 276 (6th Cir.1988).
Second, even if the appellees are not bound by their own regulations, they are bound by the limits of due process as set by this Court and the Sixth Circuit Court of Appeals. This Court, in Gilhaus v. Wilson, 734 S.W.2d
808, 810 (Ky. App. 1987), agreed with the Federal District Court for the Western District of Kentucky that a disciplinary committee must make a determination that a confidential informant is trustworthy. See Goble v. Wilson, 577 F.Supp. 219 (W. D. Ky.1983). That requirement can be fulfilled by a statement that the committee found the informant to be reliable and some reference to the verification procedure used. Gilhaus, 734 S.W.2d at 810. In Gilhaus, the committee met this requirement by indicating that "the declarations of the informant[s] were confirmed by polygraph examinations." Id.
In its motion to dismiss Appellant's action in the circuit court, the Commonwealth represented that the adjustment officer "issued written findings that listed the evidence used to find [Appellant] guilty. The findings also referenced the witness statements and verified the sufficiency of the confidential report." In fact, the adjustment officer's report states:
I find inmate Caldwell guilty of a 5-05 inchoate based on the fact that Lt. Nietzel completed an investigation concerning Inmate Joshua Caldwell #213342. Inmate Caldwell worked in Receiving and Discharge. [Lt. Nietzel] received and gathered sufficient information that while inmate Caldwell was working in R and D he accessed inmate files and altered the property sheets and contents of the inmates [sic] folders. This aided other inmates in getting away with canteen and stolen property making it appear that the property belonged to them when it really didn't.
Clearly, the adjustment officer's report does not verify any confidential information and, in fact, does not even indicate that such was part of Lieutenant Nietzel's investigation. If the evidence she relied upon in her investigation was not confidential, due process required that Appellant have access to the evidence against him. If the evidence was confidential and the disclosure of such could result in prisoner safety issues, then it was the duty of the adjustment officer to make a determination as to reliability of that confidential information and include in his report the basis for that finding.
Based on the preceding, we must conclude that Appellees did not provide Appellant with the minimal due process afforded to inmates in prison disciplinary proceedings. We cannot discern from Lieutenant Nietzel's write-up or the adjustment officer's report that evidence was received from confidential informants and, if so, that its reliability was verified.
Accordingly, we vacate the circuit court's order affirming the prison disciplinary action. Furthermore, we remand this matter to the circuit court with instructions for it to remand to Appellees so that the adjustment officer can make a determination of informant reliability if indeed confidential information was relied upon.
ALL CONCUR. BRIEFS FOR APPELLANT: Joshua Caldwell
Burgin, Kentucky
BRIEF FOR APPELLEE: John Marcus Jones
Frankfort, Kentucky