Patrick v. DEPT. OF CORRECTIONS

• Decision Date: 02 April 2004
• Docket Number: No. 2423,2423
• Citation: 156 Md. App. 423,847 A.2d 450
• Parties: Joseph PATRICK v. SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL Services.
• Court: Court of Special Appeals of Maryland

847 A.2d 450

156 Md. App. 423

Joseph PATRICK v. SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL Services.

No. 2423, Sept. Term, 2001.

Court of Special Appeals of Maryland.

April 2, 2004.

Reconsideration Denied May 21, 2004.

Joseph B. Tetrault (David C. Wright, Stephen Z. Meehan, Pauline K. White, on the brief), Chestertown, for appellant.

Alan D. Eason (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Panel: BARBERA,¹ GREENE, and CHARLES E. MOYLAN, JR., (Retired, specially assigned) JJ. BARBERA, Judge.

This appeal stems from the transfer of appellant, Joseph Patrick, from the Maryland House of Correction Annex ("MHC-X"), a maximum security prison, to the Maryland Correctional Adjustment Center ("MCAC"), a supermaximum security prison. The Commissioner of the Division of Correction ("DOC") immediately ordered appellant's emergency transfer to MCAC when he was charged with attempted escape. At a subsequent disciplinary hearing, appellant was adjudicated not guilty of attempted escape.

When appellant was not transferred back to MHC-X after this adjudication, he initiated grievance procedures, arguing that he was entitled to a transfer back to MHC-X. Appellant's administrative and subsequent judicial review efforts have been unsuccessful, prompting the instant appeal.

Appellant presents the following questions for our review:

I. Is there a protected liberty interest in avoiding transfer to supermax?

II. Is the DOC bound by the fact-finding of its disciplinary hearing officer?

III. Is continued segregation of appellant without a factual basis arbitrary and capricious?

For the reasons that follow, we affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

On April 26, 2000, appellant, an inmate housed at MHC-X, was charged with attempted escape from that facility. Later that day, appellant was transferred to MCAC. Correctional Officer Renee Cherry stated in the "Notice of Inmate Rule Violation and Disciplinary Hearing":

On April 26, 2000 I Ofc. Cherry was working D-building yard at approximately 9:15 a.m. [when] I observed an escape attempt. I noticed that inmate Joseph Patrick was standing in the back of the fence in the area where the escape took place. I radioed to control to report an escape in progress at which time inmate Patrick signaled to the inmates escaping in the grass. I called control. I Ofc. Cherry believe that inmate Patrick was a look-out man due to the fact [that] he was the only inmate in the area at the time of the escape while all others were on the other side of the yard. Inmate Joseph Patrick # 213-986² is in violation of Rule 106.

Appellant appeared before a hearing officer at a disciplinary hearing on May 4, 2000. Two inmate witnesses testified on appellant's behalf. Both stated that appellant was not near the area of the attempted escape when it occurred. Officer Cherry did not testify. The hearing officer credited the testimony of appellant, determined that Officer Cherry's report was internally inconsistent, and found appellant not guilty of attempted escape.

Appellant thereafter requested a transfer back to MHC-X. When the Assistant Commissioner did not act upon that request, appellant filed a complaint with the Inmate Grievance Office ("IGO"). After the IGO determined that appellant's complaint met the preliminary criteria for a meritorious grievance, the IGO referred the matter to the Office of Administrative Hearings, entitling appellant to a hearing before an administrative law judge ("ALJ").³

Appellant represented himself at the grievance hearing on March 14, 2001. He argued that he was wrongly retained at MCAC because it had been determined by the disciplinary hearing officer that he was not guilty of escape or attempted escape. He specified that he was being punished for an act he had not committed, because he was now forced to remain at MCAC for at least two to three years as the result of the Assistant Commissioner's placing him in Transfer Category Three (about which we say more, infra).

Appellant called as a witness Patricia Briggs, the supervisor of his MCAC case management specialist. Ms. Briggs discussed the two Division of Correction Directives ("DCD") that pertain to appellant in this instance. She explained that inmate transfers to MCAC are governed by DCD 100-161. That directive provides that the Assistant Commissioner approve a request by another facility for transfer of an inmate into MCAC. In appellant's case, that request for transfer was approved, and the Assistant Commissioner assigned appellant to Transfer Category Three. Ms. Briggs testified that, even though the disciplinary hearing officer had found appellant not guilty of a rule infraction, the Assistant Commissioner had the authority to make an independent decision that appellant should remain in Category Three.

Appellant asked Ms. Briggs whether DCD 100-161 permitted him "to be subjected to punishment [for an act] that he is not guilty of," to which she responded:

Mr. Patrick, let me just say this to you. You're talking about two different DCD's. When you talk about adjustments, you're talking about DCD 105. When you talk about transfers to MCAC, we're talking about 100-161 series which is two different DCD's. You're absolutely right in terms of, if you're found not guilty, and say you were on work release and you lost your job and found not guilty, then the Case Management Department would bring you up for reclass back to your original status.

But in this particular incident, coming to the super max, it's an entirely different DCD which is 100-161, that only the Assistant Commissioner makes the determination on whether [we] made a mistake.... [B]ased on the facts that were given to him, the documents that were sent to him by the Annex, he determined that you should remain here and that you should remain in Category Three transfer category. Ms. Briggs went on to explain that "[t]his has nothing to do with guilt ... this has to do with transfer and it clearly states transfer."

On June 12, 2001, the ALJ issued a proposed decision. In the findings of fact section of the proposed decision, the ALJ found that appellant had been transferred to MCAC under Category Three of DCD 100-161.⁴ The ALJ stated that Category Three applies to inmates transferred to MCAC for escape or attempted escape and requires a minimum two-to-three-year retention at MCAC; Category Three inmates receive an annual review and may be transferred when they have served fifty percent of their time at MCAC; and appellant's status as a Category Three Transfer remained unchanged after his having been found not guilty of attempted escape by the disciplinary hearing officer.

The ALJ noted that Category Ten of DCD 100-161 applies to inmates who are transferred for behavior or suspected behavior that is believed to be "detrimental to institutional security or public safety," and that Category Eleven permits the transfer of an inmate by order of the Commissioner or pending an inmate's investigation. Categories Ten and Eleven require no minimum period of retention at MCAC before transfer. The ALJ also noted that only the Assistant Commissioner of the DOC (presumably as the Commissioner's designee) has the authority to change an inmate's transfer category.

Because the Commissioner has complete discretion in authorizing the transfer of appellant into and out of MCAC, the ALJ denied and dismissed appellant's grievance with respect to his request for a transfer to MHC-X. But, because the disciplinary hearing officer had found appellant not guilty of attempted escape, the ALJ recommended that "the Division of Correction reconsider and correct his transfer category, so as to change him from a Category Three Transfer (escape or attempted escape), to a Category Ten or Eleven transfer."⁵ By order dated June 19, 2001, the Secretary of the Department of Public Safety and Correctional Services ("Secretary") ordered, without comment, that the ALJ's proposed order be affirmed.

Appellant, represented by counsel, sought judicial review in the Circuit Court for Baltimore City. By order entered on December 10, 2001, the court affirmed the Secretary's order. On January 10, 2002, appellant filed an application for leave to appeal to this Court, pursuant to Maryland Rule 8-204.⁶ On October 22, 2002, we granted the application and transferred the case to this Court's regular appeal docket.

DISCUSSION

I.

Appellant argues that he has a liberty interest, protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution,⁷ in avoiding continued incarceration at MCAC. In support of this claim, appellant directs us to the conditions and duration of his confinement at MCAC, which, he argues, encroach upon a protected liberty interest. Appellant rests much of his argument on what he characterizes as the "draconian" conditions of confinement at MCAC, as reflected by various DCDs and the regulation that spells out the level of security that exists at supermax facilities.

The Secretary points out as a preliminary matter that appellant failed to make a record before the ALJ that supports this contention, and we should therefore decline to address it. The Secretary, moreover, has filed a motion to strike portions of appellant's appendix, arguing that the DCDs and institutional bulletin contained in it are not law.⁸ The Secretary maintains that, "absent the ALJ accepting into evidence or taking notice of them, [these documents] are not part of the record on judicial review, and may not be considered by this court." Relatedly, the Secretary asserts that appellant's argument, which is that these documents illustrate how the conditions in MCAC impose an atypical and significant hardship on him in relation to the ordinary incidents of prison life at MHC-X, is being made for the first time on judicial review.

We agree with the Secretary that appellant did not make any of the...