Opinion
No. 61575-1-I.
September 22, 2008.
Petition for relief from personal restraint.
UNPUBLISHED OPINION
Allan Parmelee filed a petition for writ of habeas corpus in the Supreme Court challenging the sanctions imposed following a prison disciplinary hearing. The Supreme Court transferred the petition to this court for consideration as a personal restraint petition. On the unique facts presented here, Parmelee has shown by a preponderance of the evidence that he did not receive a constitutionally adequate opportunity to present a defense. We grant the petition and remand to the Department of Corrections (DOC) for a hearing at which the minimum due process requirements are met. In re Pers. Restraint of Goulsby, 120 Wn. App. 223, 84 P.3d 922 (2004); In re Pers. Restraint of Higgins, 152 Wn.2d 155, 160, 95 P.3d 330 (2004).
A petitioner assigning error to a prison disciplinary hearing must show that he is presently restrained because of a constitutional error and that the error actually and substantially prejudiced him. In re Pers. Restraint of Burton, 80 Wn. App. 573, 585, 910 P.2d 1295 (1996). Our review "is limited to determining whether the action taken was so arbitrary and capricious as to deny the petitioner a fundamentally fair hearing." In re Burton, 80 Wn. App. at 582. Action is so arbitrary and capricious as to deny a fundamentally fair proceeding if the petitioner is not afforded the minimum due process protections applicable in prison disciplinary hearings or if the decision is not supported by at least some evidence. In re Pers. Restraint of Anderson, 112 Wn.2d 546, 548-49, 772 P.2d 510 (1989); Burton, 80 Wn. App. at 585. Minimum due process in this setting means the prisoner must (1) receive notice of the alleged violation; (2) be provided an opportunity to present documentary evidence and call witnesses when not unduly hazardous to institutional safety and correctional goals; and (3) receive a written statement of the evidence relied upon and the reasons for the disciplinary action. Dawson v. Hearing Comm., 92 Wn.2d 391, 397, 597 P.2d 1353 (1979) (citing Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)).
Parmelee was charged with violating prison rules 558 and 653. See WAC 137-25-030, Nos. 558 and 653. According to the notice of infraction, officers were conducting a card count in the Washington Correction Center's Intensive Management Unit (IMU) and Parmelee answered repeated requests for his name and DOC number only with snide comments and threats to sue the officers. Parmelee received the 558 infraction for interfering with staff performing their duties and the 653 infraction for interfering with a cell count or causing an inaccurate count. After a hearing, a DOC hearing officer found Parmelee guilty only of the 653 infraction and imposed sanctions, including the loss of good time.
Parmelee raised many claims in his initial petition, but it is necessary here only to consider his contention that his right to present a defense was denied by the hearing officer. In his petition, Parmelee alleged that the hearing officer refused to consider all of Parmelee's 22-page written defense because, the officer said, he was required to consider only two pages of any inmate submissions.
In its December 2007 response to the petition the DOC argued that because Parmelee had not provided a transcript of the hearing, his contention that the officer had indicated he would only consider two pages was not supported by the record and should be disregarded by the court.
Shortly thereafter, Parmelee filed a motion to compel DOC to produce a copy of the tape of the hearing, which he asserted DOC had improperly denied him despite his repeated requests. DOC responded by indicating it would provide Parmelee a copy of the tape, although it disputed that Parmelee had previously followed the proper procedure for requesting the tape.
Parmelee then filed his reply to DOC's response. He appended to his reply what was apparently a transcript of the hearing, in which the hearing officer said, as Parmelee had claimed in his petition, that the officer was not required to read any materials longer than two pages and would not read all of Parmelee's submission. When Parmelee questioned him as to the basis of this policy, the officer responded: "That's what I'm telling you. Okay? You're not here to ask me questions, okay?" Reply of Petitioner to Respondent's Response, Attachment A at. This court thereafter directed a supplemental response from DOC addressing whether the hearing officer made the statements attributed to him in Parmelee's transcript, and if he did, what authority there was to support such a position.
DOC has now filed its supplemental response. In it, DOC concedes that Parmelee's transcript is accurate in all material respects, agrees that the hearing officer did indeed make the statements Parmelee alleged, and further acknowledges there is no legal authority or policy supporting such a rule. The DOC nonetheless still asks this court to dismiss Parmelee's claim regarding his right to present a defense. It argues alternatively that the officer was not obligated to consider Parmelee's written defense and that in any event the record shows the officer did consider it in its entirety. We find neither contention persuasive.
DOC suggests the officer had no duty to consider Parmelee's written materials because they were merely "a conglomeration of proposed questions of witnesses, legal arguments, assertions by Petitioner that are unrelated to the incident underlying his infraction, and two pages of Petitioner's written testimony concerning the facts of the infraction." Supplemental response, at 3. But an inmate has the right to present witnesses in his defense, to present documentary evidence when not hazardous to institutional safety or correctional goals, and to submit proposed questions to be asked of witnesses. See WAC 137-28-300. While we agree with DOC that a hearing officer possesses discretion to limit evidence presented at an infraction hearing, he or she must generally state proper reasons for doing so, either at the time of the hearing or thereafter. See In re Pers. Restraint of Krier, 108 Wn. App. 31, 43-44, 29 P.3d 720 (2001) (citing Ponte v. Real, 471 U.S. 491, 497, 105 S. Ct. 2192, 85 L. Ed. 2d 553 (1985)). Here, the only explanation ever offered by the hearing officer was what DOC now concedes is the nonexistent two-page rule.
DOC suggests that nothing in the DOC disciplinary regulations allows an inmate to submit written materials in lieu of live testimony and thereby "avoid being subjected to legitimate questioning by hearing officers." Supplemental Response at 3. But regardless of whether such a concern could justify not considering an inmate's written defense in any one case, it was not the rationale offered by the hearing officer in this case. Moreover, it does not appear from the transcript that Parmelee in fact was refusing to answer any questions put to him by the hearing officer.
DOC alternatively contends that notwithstanding the hearing officer's comments discussed above, we should nonetheless conclude that the officer actually considered the entirety of Parmelee's written materials. DOC relies on a portion of the transcript that shows that after the officer took a recess he stated, "Noted for the record that your written statement was reviewed by me." Reply of Petitioner to Respondent's Response, Attachment A at DOC fails to discuss, however, the record immediately following the portion quoted, in which the hearing officer refused to answer when Parmelee asked if he had reviewed the entire written defense.
In light of this exchange, which was the last discussion in the record regarding Parmelee's written defense, we cannot conclude, as DOC urges, that the officer in fact considered all of Parmelee's materials. We note that the hearing officer's oral and written findings are not consistent with DOC's claim that the officer actually considered all Parmelee's claims. For example, the findings give no indication of how the officer resolved the substantial factual dispute between Parmelee's sworn statement regarding the facts and the guards' version of events. Nor did the hearing officer give any reasons for not propounding Parmelee's proposed questions to the witnesses. While such statements might not ordinarily be required in findings to meet the applicable minimum due process requirements, here, where the DOC asks this court to conclude that the officer considered all of Parmelee's materials despite the officer's emphatically expressed belief that he did not have to, the absence of such indicia in the findings is compelling. Considering the entire record in context, the most we can assume is that the officer considered some two-page portion of the written defense.
We emphasize that our holding is limited to these particular facts. We express no opinion on the conditions under which any individual determination to limit an inmate's written submissions would offend due process, other than repeating the general rule that a hearing officer must somewhere state the reasons for declining to consider proffered evidence. Nor do we prescribe how far a hearing officer must go to address adequately the type of arguments and assertions Parmelee attempted to raise here, beyond observing, as DOC acknowledges, that findings must be sufficient "to allow meaningful consideration or review of the hearing by other governmental entities, including . . . the courts." Response to Petition at 8-9.
We are satisfied that Parmelee has established a basis for relief by showing that he was not afforded the right to minimal due process during the disciplinary proceedings. See In re Anderson, 112 Wn.2d at 548-49; In re Krier, 108 Wn. App. 31, 45. Accordingly, we grant the petition and remand to the DOC to conduct a hearing at which the minimum due process requirements are met. In re Goulsby, 120 Wn. App. at 231; In re Higgins, 152 Wn.2d at 160.