Conn v. Morgan, No. 2006-CA-002446-MR (Ky. App. 12/14/2007)
| Decision Date | 14 December 2007 |
| Docket Number | No. 2006-CA-002446-MR.,2006-CA-002446-MR. |
| Parties | Lance CONN, Appellant v. James L. MORGAN, Warden, and Al McQueary, Appellees. |
| Court | Kentucky Court of Appeals |
Lance Conn, Central City, Kentucky, Brief for Appellant.
James D. Godsey, Justice and Public Safety Cabinet, Frankfort, Kentucky, Brief for Appellee.
Before THOMPSON, Judge; BUCKINGHAM and HENRY, Senior Judges.1
Lance Conn appeals from an order of the Boyle Circuit Court that dismissed his petition for declaration of rights involving the imposition of disciplinary penalties for the violation of the prison regulation prohibiting the physical assault of another inmate. More specifically, Conn challenges the use of confidential information from other inmates in the disciplinary action. After reviewing the record, the arguments of the parties, and the law, we affirm.
On May 16, 2005, while Conn was at the Northpoint Training Center, two inmates, Chadwick York and Ernest Nickell, assaulted another inmate, Kenneth Carter. Carter was injured seriously enough that he was transported outside the prison for medical treatment. During the initial investigation of the incident, Corrections Officer Lieutenant Gribbins obtained information from confidential informants that Conn had given York and Nickell gloves and rags that had been used during the assault. In an interview with Sergeant Bryant, Conn admitted giving the gloves and rags to York earlier in the evening before the incident. However, Conn asserted he had no prior knowledge of the two inmates' intent to assault Carter.
Lieutenant Gribbins prepared an incident report entitled Disciplinary Report Form-Writeup and Investigation that indicated Conn had taken the gloves and rags hidden under his shirt to a smoke tunnel and had given them to York. York and Nickell put on the gloves, covered their faces, and then went to the upper left wing of the prison where they assaulted Carter. Gribbins stated in the report that the confidential informants had provided reliable information in the past and that he had submitted a list of the confidential informants to the disciplinary hearing officer. Conn was charged with a major violation of the prison disciplinary regulations, Corrections Policies and Procedures (CPP) Policy Number 15.2, Category VII, Item 2, Physical Action Resulting in the Death or Serious Injury of Another Inmate.
At the disciplinary hearing conducted by Lieutenant Al McQueary acting as the Adjustment Officer, Conn presented several witnesses who said he was with them watching television during the time of the incident. Conn stated that he had given the gloves and rags to York, but he denied knowing anything about the planned assault. Conn maintained that he had borrowed the gloves and rags earlier for working out with the prison weightlifting equipment and had merely returned them to York.
Lieutenant McQueary found Conn guilty of an inchoate violation of the CPP category VII-2 involving aiding the action of others in committing a violation. See CPP 15.2(E)(1)(d). The penalty imposed included disciplinary segregation for 180 days, forfeiture of two years non-restorable good time credit, and restoration of medical expenses. Upon administrative appeal, James Morgan, the prison warden, concurred in the Adjustment Officer's decision.
On June 28, 2006, Conn filed a petition for declaration of rights in the Boyle Circuit Court assailing the disciplinary action on due process grounds involving the use of the confidential information in the administrative process. The Justice and Public Safety Cabinet filed a combined response to the petition for declaration of rights and motion to dismiss the action denying any due process violations. Conn also filed a motion requesting an in camera review of the confidential information by the circuit court, which was denied. On September 1, 2006, the circuit court entered an order dismissing the petition and rejecting Conn's constitutional claims. This appeal followed.
Conn condemns the use of the confidential information as violating his constitutional right of due process under the Fourteenth Amendment of the U.S. Constitution and Section 2 of the Kentucky Constitution as reflected in case law and the prison disciplinary regulations. He contends that the Adjustment Officer's finding of guilt was arbitrary because he failed to account properly for the reliability of the confidential sources.
In Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), the U.S. Supreme Court recognized that "prison discipline proceedings are not part of the criminal prosecution, and the full panoply of rights due to a defendant in such proceedings does not apply." Moreover, given security concerns in the prison setting, an inmate's right to confront his accuser and cross-examine witnesses may be circumscribed within the sound discretion of prison officials. Id. at 568-69, 94 S.Ct. at 2981.
While the court in Wolff dealt with procedural requirements, in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), the Supreme Court articulated the substantive quantum of evidence required to support a decision in a prison disciplinary proceeding. The Court held that a disciplinary action negatively impacting a protected liberty interest must be supported by "some evidence in the record" in order to comport with the minimum requirements of due process. Id. at 454, 105 S.Ct. at 2773. Id. at 455-56, 105 S.Ct. at 2774. Kentucky has similarly adopted a "some evidence" standard for judicial review of prison disciplinary proceedings under Section 2 of the Kentucky Constitution. Smith v. O'Dea, 939 S.W.2d 353, 358 (Ky.App. 1997); Webb v. Sharp, 223 S.W.3d 113, 118 (Ky. 2007).
Case law has clearly recognized the legitimate use of confidential information and limited access to the identity of confidential informants in prison disciplinary actions. See, e.g., Stanford v. Parker, 949 S.W.2d 616 (Ky.App. 1996); Gilhaus v. Wilson, 734 S.W.2d 808 (Ky.App. 1987); Gaston v. Coughlin, 249 F.3d 156 (2nd Cir. 2001). Inmates have no absolute due process right to information possibly exposing the identity of the confidential informant because of the legitimate need to prevent retaliation. See, e.g., Wells v. Israel, 854 F.2d 995, 998-99 (7th Cir. 1988); Stanford, supra. Thus, a disciplinary committee may consider confidential information even though the inmate has not been permitted access to it. However, testimony of confidential informants cannot be given any weight unless there has been a determination that the informants are reliable. See Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987); Taylor v. Wallace, 931 F.2d 698, 701 (10th Cir. 1991); Williams v. Fountain, 77 F.3d 372, 375 (11th Cir. 1996).
The federal courts have held that there is no single mandatory method for determining and documenting the reliability of the confidential informant in a prison setting. Taylor, 931 F.2d at 698; Freitas v. Auger, 837 F.2d 806, 810 n.9 (8th Cir. 1988). Generally, where the disciplinary committee relies on confidential sources, there must be sufficient information in the record to convince the reviewing authority that the disciplinary committee undertook an independent inquiry and correctly concluded that the confidential information was credible and reliable. Taylor, 931 F.2d at 702; McKinny v. Meese, 831 F.2d 728, 731 (7th Cir. 1987); Ortiz v. McBride, 380 F.3d 649, 655 (2nd Cir. 2004).
For instance, the Seventh and Ninth Circuits have identified four non-exclusive methods for establishing informant reliability: 1) the oath of the investigating officer as to the truth of his report containing confidential information along with his appearance before the disciplinary committee; 2) corroborating evidence or testimony; 3) a statement on the record by the disciplinary committee of knowledge of the sources of the information and their reliability in prior instances; or 4) in camera review of material documenting the investigator's assessment of the reliability of the confidential informant. See Henderson v. U.S. Parole Commission, 13 F.3d 1073, 1078 (7th Cir. 1994) (citing Mendoza v. Miller, 779 F.2d 1287, 1298 (7th Cir. 1985)); Zimmerlee v. Keeny, 831 F.2d 183, 187 (9th Cir. 1987). The Second Circuit has noted several factors relevant to determining the reliability of an informant based on the totality of the circumstances approach, including the informant's motive for giving the information, the specificity of the information, the reliability of the informant in prior situations, and the degree to which the information is corroborated by other evidence. See Sira v. Morton, 380 F.3d 57, 78-79 (2nd Cir. 2004); Gaston, 249 F.3d at 163-64.
In Hensley v. Wilson, 850 F.2d 269 (6th Cir. 1988), the Sixth Circuit held that in cases where the prisoner is found guilty of misconduct based on evidence consisting entirely or substantially on the statements of a confidential informant, the disciplinary committee could not rely only on the investigator's opinion that the informant was credible and must make an independent assessment of the informant's reliability.
The court indicated that due process required the disciplinary committee have "some evidentiary basis . . . upon which to determine for itself that the informant's story is probably credible." 850 F.2d at 277. (Emphasis in original). It further stated:
At a very minimum the investigator must...
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