Boards-Bey v. White

• Decision Date: 13 July 2012
• Docket Number: NO. 2011-CA-000818-MR,2011-CA-000818-MR
• Parties: CLIFTON BOARDS-BEY APPELLANT v. RANDY WHITE, WARDEN; BILLY J. HERRIN, LT.; AND D. ELLIS, SGT. APPELLEES
• Court: Kentucky Court of Appeals

CLIFTON BOARDS-BEY APPELLANT v. RANDY WHITE, WARDEN; BILLY J. HERRIN, LT.; AND D. ELLIS, SGT. APPELLEES

NO. 2011-CA-000818-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: JULY 13, 2012

TO BE PUBLISHED

APPEAL FROM MUHLENBERG CIRCUIT COURT

HONORABLE BRIAN WIGGINS, JUDGE

ACTION NO. 10-CI-00699

OPINION

VACATING AND REMANDING

BEFORE: ACREE, CHIEF JUDGE; COMBS AND LAMBERT, JUDGES.

COMBS, JUDGE: Clifton Boards-Bey, acting pro se, appeals the order of the Muhlenberg Circuit Court of April 1, 2011, which dismissed his petition for a declaration of rights. Boards-Bey contends that he did not receive the due processto which he was entitled in a prison disciplinary hearing. After our review, we agree with him and vacate the order of the circuit court and remand.

Boards-Bey was an inmate at the Northpoint Training Center (NTC) in Burgin, Kentucky. A riot occurred on August 21, 2009. After NTC staff suppressed the riot, NTC staff member Stefany R. Thornberry investigated the incident. During the course of her investigation, Thornberry interviewed Lieutenant J. Phillips. Phillips stated that he had observed Boards-Bey yelling and throwing objects at NTC staff in front of Dorm 1 and that Boards-Bey chased him from Dorm 1 to the kitchen.

After the riot, Boards-Bey was transferred to the Green River Correctional Complex in Central City, Kentucky. Sergeant Darime Ellis was assigned Boards-Bey's disciplinary matter. Sgt. Ellis interviewed Boards-Bey concerning the riot at NTC. Boards-Bey denied all the allegations against him and contended that there were two inmates who could verify that Boards-Bey had not chased Lt. Phillips.

Sgt. Ellis subsequently charged Boards-Bey with "Physical Action resulting in the Death or Injury of an Employee or Non-Inmate," a violation of Category VII, Item 4 of Kentucky Department of Correction Policies and Procedures (CPP) 15.2. Boards-Bey received a copy of the disciplinary report on October 25, 2009. At that time, Boards-Bey entered a plea of not guilty to the charge and requested three witnesses to testify on his behalf: Inmate Anthony Anderson, Inmate Robert Powell, and Lt. Phillips.

A prison disciplinary hearing was held on October 28, 2009, presided over by Adjustment Officer Billy J. Herrin. Officer Herrin notified Boards-Bey of his rights pursuant to Miranda v. Arizona.¹ The CPP manual provides that an inmate has the right: "To be silent during the hearing but that his silence may be used again him in the hearing." CPP § 15.6(e). Boards-Bey decided that he would remain silent after receiving this warning. Officer Herrin then determined that by electing to remain silent, Boards-Bey had waived his right to call and to question his witnesses. No prison investigator called or questioned the witnesses on his behalf or as a part of the evidence in the investigation upon which the final adjudication was premised. Instead, Officer Herrin simply pronounced Boards-Bey guilty as charged in Thornberry's report. He also relied upon the verified statement by Lt. Phillips that Boards-Bey was yelling and throwing items at the NTC staff in front of Dorm 1 and that he had chased Lt. Phillips from Dorm 1 to the kitchen. As punishment, Officer Herrin assigned Boards-Bey to 365 days of disciplinary segregation, assessed a forfeiture of 199 days of good time, and ordered him to pay restitution for any medical costs due.

Boards-Bey appealed Officer Herrin's findings to Warden Randy White. On November 25, 2009, Warden White amended the offense to "Physical Action against an Employee or Non-Inmate," a Category VII, Item 1 violation, and reduced the penalty to 180 days disciplinary segregation. The forfeiture of good-time credit and restitution portions remained unchanged.

Boards-Bey filed a Petition for Declaration of Rights pursuant to Kentucky Revised Statute[s] (KRS) 418.040 in the Muhlenberg Circuit Court. He claimed that his right to due process under the Fourteenth Amendment had been violated. On March 21, 2011, Appellees filed a "pre-answer motion to dismiss" under Kentucky Rules of Civil Procedure (CR) 12.02(f), claiming that Boards-Bey failed to state a claim upon which relief could be granted. On April 1, 2011, the circuit court granted the Appellees' motion and dismissed Boards-Bey's petition for declaration of rights. Boards-Bey then filed this appeal.

Boards-Bey first claims that the circuit court erred by not affording him sufficient time to respond to the Appellees' motion to dismiss prior to ruling on the motion. He argues he should have been granted - at a minimum - twenty days to respond. In support of his position, Boards-Bey points to CR 12.01, which provides in pertinent part, "a party served with a pleading stating a cross claim against him/her shall serve an answer thereto within 20 days after the service upon him/her." We cannot agree that CR 12.01 is implicated. Appellees' motion to dismiss was neither a pleading nor a cross-claim to which CR 12.01 might apply.

However, case law has addressed the criteria governing a court's treatment of a motion to dismiss:

A motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved. . . . Accordingly, the pleadings should be liberally construed in the light most favorable to theplaintiff, all allegations being taken as true. This exacting standard of review eliminates any need by the trial court to make findings of fact; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo.

Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (citations and quotations omitted).

Boards-Bey claims that his due process rights were violated when: (1) Officer Herrin denied Boards-Bey the right to call witnesses to testify during the prison disciplinary hearing on his behalf; and (2) Sgt. Ellis failed to properly investigate the NTC incident by interviewing and obtaining witness statements from Lt. Phillips and Inmates Powell and Anderson in violation of CPP 15.6(II)(C)(4)(b)(2)(c).

Prison disciplinary proceedings are administrative rather than criminal in nature. While inmates retain rights under the Due Process Clause of the United States and Kentucky Constitutions, a defendant in a prison disciplinary proceeding it not entitled to "the full panoply of rights due a defendant" in a criminal proceeding. See Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974); Smith v. O'Dea, 939 S.W.2d 353, 357-58 (Ky. App. 1997). Nonetheless,

the U.S. Supreme Court has concluded that due process requirements in prison disciplinary hearings, where the loss of good time credit is at stake, include: (1) advancewritten 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.

Webb v. Sharp, 223 S.W.3d 113, 117-18 (Ky. 2007) (citation omitted).

Under the Webb v. Sharp criteria, Boards-Bey did receive advance written notice of the charges and a concluding written statement containing the evidence relied upon and the reasons for the disciplinary action. However, he was denied the second standard: his right to an opportunity "to call witnesses and present documentary evidence in his defense." Id. The desire of Boards-Bey not to speak during his disciplinary hearing in no way implied a waiver of his right to have his witnesses properly investigated according to the procedures mandatorily set forth in Kentucky Department of Corrections Policy and Procedure 15.6(C)(4)(B)(2)(c) as follows:

During the course of the Investigation review, the Investigator SHALL interview witnesses, unless a witness is clearly irrelevant to the issues presented and record a brief statement of what the witnesses report. (Emphasis added.)

Nor did the silence of Boards-Bey abrogate the duty of Sergeant Ellis to investigate personally and to record the results of his investigation.

More disturbing, however, is the Miranda issue.

After Boards-Bey invoked his Fifth Amendment right to remain silent during the hearing, Officer Herrin, who was conducting the hearing, improperlyconstrued his assertion of his Fifth Amendment right as a waiver of his right to speak to others in order to interview witnesses. Officer Herrin was neither reasonable nor correct in equating the right to remain silent personally with a waiver of the speech necessary to question witnesses. Instead, the result was an impermissible, retaliatory penalty imposed for the invocation of the constitutionally guaranteed right to be free from self-incrimination.

His final punishment was severe: as amended, imposition of 180 days of disciplinary segregation, loss of 199 days of non-restorable good time, and payment of any restitution that may have been involved. Admittedly, as noted earlier, a defendant in an administrative prison disciplinary proceeding is not entitled to the "full panoply" of due process rights afforded to a criminal defendant at trial (Wolff, 418 U.S. at 556). Nonetheless, case law is clear that the restricted due process to which he is entitled must be granted. (Smith v. O'Dea, 939 S.W.2d 357-58).

The affronts to due process in this case severely impaired the disciplinary hearing in derogation of the very standards promulgated in the CPP. Consequently, we vacate the holding of the Muhlenberg Circuit...