Marymee v. Exec. Dir. of the Colo. Dep't of Corr.
| Decision Date | 10 April 2014 |
| Docket Number | Court of Appeals No. 13CA0375 |
| Parties | Wesley MARYMEE, Plaintiff–Appellant, v. EXECUTIVE DIRECTOR OF the COLORADO DEPARTMENT OF CORRECTIONS and Warden of Arkansas Valley Correctional Facility, Defendants–Appellees. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
Crowley County District Court No. 12CV2, Honorable Michael A. Schiferl, Judge.
Wesley Marymee, Pro Se
John W. Suthers, Attorney General, Jacquelynn N. Rich Fredericks, Assistant Attorney General, Denver, Colorado, for Defendants–Appellees
Opinion by JUDGE BOORAS
¶ 1 Plaintiff, Wesley Marymee, an inmate in the custody of the Colorado Department of Corrections (CDOC), appeals from the district court's C.R.C.P. 106.5 judgment upholding his prison disciplinary conviction. He also appeals the order denying his motion to proceed in forma pauperis and requests reimbursement for the cost incurred for the preparation of the transcript of the administrative hearing. We affirm the judgment and order, but remand the case to the district court with directions to order the CDOC to refund the cost of the hearing transcript.
¶ 2 On November 30, 2011, plaintiff was employed at Correctional Industries (CI), a for-profit division of the CDOC. See§§ 17–24–101, –102, C.R.S.2013. On that day, while plaintiff was at work, he was permitted to use the restroom at approximately 3:35 p.m. After utilizing the restroom, plaintiff noticed that it was almost 3:45 p.m. and instead of returning to the work facility, he proceeded to the staging area where the inmates waited after their shift had ended to be escorted to a security checkpoint before they were released back to their cells. Chris Sanchez, the supervisor of the CI work facility, asked plaintiff whether he was ready to leave for the day. Plaintiff responded in the affirmative. Sanchez opened the secured door, escorted him to another staging area where he was patted down, and then released plaintiff through another secured door. Joshua Hughes, who was plaintiff's direct supervisor at CI on the day in question, never excused plaintiff from work.
¶ 3 Prison officials charged plaintiff with “Unauthorized Absence,” which is a Class II violation under the CDOC's Code of Penal Discipline (COPD). Specifically, the notice stated that plaintiff, “[w]hile working in the CI warehouse on 9/30/11 at [approximately] [3:45 p.m.] left his assigned work area, without being properly excused by his direct supervisor.” Following an evidentiary hearing, the hearing officer found plaintiff guilty of the disciplinary charge. Plaintiff filed an administrative appeal which resulted in an affirmance of the hearing officer's decision by the Administrative Head.
¶ 4 Plaintiff then filed a complaint pursuant to C.R.C.P. 106.5. The district court affirmed the hearing officer's decision finding plaintiff guilty of the disciplinary charge.
¶ 5 Our review in this proceeding is limited to whether prison officials exceeded their jurisdiction or abused their discretion in imposing the disciplinary sanctions against plaintiff. See Thomas v. Colo. Dep't of Corr., 117 P.3d 7, 8 (Colo.App.2004); see alsoC.R.C.P. 106(a)(4), 106.5(i)(2). We review de novo the district court's decision. See Thomas, 117 P.3d at 8.
¶ 6 Plaintiff first contends that the district court abused its discretion in denying his motion to proceed in forma pauperis. We disagree.
¶ 7 Whether a litigant is indigent and thus entitled to prosecute a civil action without payment of costs, as provided in section 13–16–103, C.R.S.2013, is generally a matter committed to the discretion of the trial court. Collins v. Jaquez, 15 P.3d 299, 301 (Colo.App.2000). However, in civil actions brought by prison inmates, the district court's discretion is limited by section 13–17.5–103, C.R.S.2013, one of several related statutes enacted to address inmate civil actions. Id.; see also Harrison v. Wilson, 998 P.2d 1110, 1111–12 (Colo.App.2000).
¶ 8 Section 13–17.5–103(1), C.R.S.2013, states:
An inmate who seeks to proceed in any civil action without prepayment of fees, in addition to filing any required affidavit, shall submit a copy of the inmate's account statement for the six-month period immediately preceding the filing of the civil action, certified by an appropriate official at the detaining facility. If the inmate account demonstrates that the inmate has sufficient funds to pay the filing fee, ... the motion to proceed as a poor person shall be denied.
(Emphasis added.) Thus, the statute limits the trial court's discretion to determine indigency by providing that, if there are sufficient funds in the inmate account, the motion to proceed as a poor person “ shall ” be denied. Collins, 15 P.3d at 301–02 (emphasis in original).
¶ 9 The inmate account records submitted by plaintiff showed that over $1,000 had been deposited into his account during the six preceding months and that he had more than $475.33 in the account as late as one week before he filed his complaint. Thus, because plaintiff had sufficient funds in his account to pay the filing fee, the trial court was required to deny his motion. See id.
¶ 10 Plaintiff's reliance on Vance v. District Court, 908 P.2d 1189 (Colo.App.1995), in support of a contrary conclusion is misplaced. See Collins, 15 P.3d at 302. In Vance, the majority held that denial of an inmate's in forma pauperis motion was an abuse of discretion and, in so holding, observed that “[p]risoners need not deprive themselves of the small amenities of life which they are allowed to acquire in prison in order to proceed in forma pauperis.” 908 P.2d at 1192. However, the division also expressly noted that section 13–17.5–103, which limits the court's discretion in inmate cases, was not yet in effect when Vance filed his complaint and thus was not pertinent to its decision.
¶ 11 Next, plaintiff argues that the district court erred in requiring him to pay for the preparation of a written transcript of the administrative hearing rather than ordering an audio recording, as requested in his motion to certify the record. We agree.
¶ 12 As pertinent here, C.R.C.P. 106(a)(4)(III) provides that if a C.R.C.P. 106 complaint is accompanied by a motion and proposed order requiring certification of the record, the district court shall order the administrative body to file with the court within a specified time the record “as is identified in the order.” See alsoC.R.C.P. 106.5(f) (). C.R.C.P. 106.5(h), in turn, provides that the “cost of preparation of the record shall initially be paid by the Warden but, upon the filing of the certified record with the Court, the Warden shall immediately deduct the cost of preparation of the record, including the recording, from the inmate's account.” See alsoC.R.C.P. 106 (a)(4)(IV) (the “cost of preparing the record shall be advanced by the plaintiff”).
¶ 13 In plaintiff's motion to certify the record, he requested that the record include “[a]ll audio tapes from the administrative disciplinary hearing.” The district court granted plaintiff's motion to certify the record but ordered a written transcript of the administrative hearing in lieu of an audio recording, stating that “transcripts are more easily reviewable, are a written record of testimony and of evidence, and are less susceptible to errors and of destruction.” Plaintiff objected to the court's order and filed a motion seeking to enjoin “the DOC from illegally deducting $107.10 [for the preparation of the hearing transcript] from his inmateaccount.” The court denied the motion without comment.
¶ 14 Nothing in C.R.C.P. 106 or 106.5 requires that a written transcript be prepared in order to obtain judicial review. In addition, we are unaware of any case law that requires preparation of a transcript in such a proceeding. See Almarez v. Carpenter, 173 Colo. 284, 291–92, 477 P.2d 792, 796 (1970) (). Thus, although the lack of a transcript may be inconvenient, see Earl v. Dist. Court, 719 P.2d 321, 324 (Colo.1986), an audiotape may provide a sufficient basis upon which to conduct review. See Schaffer v. Dist. Court, 719 P.2d 1088, 1090 (Colo.1986) (). “A simplified record ... facilitate[s] access to the courts and serve[s] the interests of justice.” Id. Indeed, C.R.C.P. 106.5(g), concerning “Contents of the Record,” conforms to this principle by requiring that only a copy of the audio recording—and not a written transcript—be provided for judicial review: “If any part of the proceeding was recorded, a copy of the recording shall be provided.” (Emphasis added.)
¶ 15 Therefore, we conclude that the district court erred in requiring plaintiff to pay for the preparation of a written transcript of the disciplinary hearing, especially in light of plaintiff's specific request for “audio tapes” and his objection to the court's substitution of a written transcript for the hearing tape. However, because the transcript has already been prepared, the only available remedy here is for the CDOC to credit plaintiff's inmate account for the cost incurred for the preparation of the hearing transcript.
¶ 16 Plaintiff makes various arguments concerning the validity and outcome of his hearing before the disciplinary board. We address and reject these arguments in turn.
¶ 17 Plaintiff alleges that he was denied his due process right to call his case manager as a witness and present a defense. We perceive no error.
¶ 18 “An inmate in a disciplinary hearing enjoys only the most basic due process rights....” Mariani v. Colo. Dep't of Corr., 956 P.2d 625, 628 (Colo.App.1997)....
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...v. Exec. Dir. of Colo. Dep't of Corr. , 2014 COA 69, ¶ 6, 345 P.3d 969 ; Marymee v. Exec. Dir. of Colo. Dep't of Corr. , 2014 COA 44, ¶ 1, 328 P.3d 284.1 ¶ 11 Conversely, C.R.C.P. 106.5 does not apply to parole board decisions because the DOC’s executive director and prison facility wardens......