Saenz v. Murphy
| Decision Date | 22 May 1991 |
| Docket Number | No. 88-2084,88-2084 |
| Citation | 469 N.W.2d 611,162 Wis.2d 54 |
| Parties | Jerry SAENZ, Plaintiff-Appellant, d v. James P. MURPHY, Colleen James, and Marv Prieve, Defendants-Respondents-Petitioners. |
| Court | Wisconsin Supreme Court |
John J. Glinski, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on briefs, for defendants-respondents-petitioners.
Martha K. Askins, Asst. State Public Defender, argued, and Steven H. Steinglass, Cleveland State University-Marshall College of Law, on briefs, Cleveland, Ohio, for plaintiff-appellant.
This case is before the court on petition for review of a decision of the court of appeals, Saenz v. Murphy, 153 Wis.2d 660, 451 N.W.2d 780 (Ct.App.1989). The court of appeals affirmed in part and reversed in part a judgment of the circuit court for Dane county, George A.W. Northrup, Circuit Judge. The circuit court granted summary judgment to the defendants on the grounds that Jerry Saenz (Saenz) was accorded due process of law and, therefore, did not have a cause of action under 42 U.S.C. sec. 1983 (1988) [hereinafter sec. 1983]. 1 The court of appeals held that Saenz did have a cause of action under sec. 1983 because he was denied his constitutional right to call a witness at an inmate disciplinary hearing. Saenz, 153 Wis.2d at 681-82, 451 N.W.2d 780. The court of appeals dismissed the other grounds Saenz advanced to support this sec. 1983 action, and Saenz does not seek review in this court of that part of the court of appeals decision.
One issue is present on this review: whether the defendants denied Saenz his constitutional right to call witnesses at his inmate disciplinary hearing. We hold that as a matter of law the defendants did not deny Saenz his right to call witnesses because Saenz waived his right to do so by walking out of his disciplinary hearing without objecting to the lack of witnesses. 2 Accordingly, the circuit court properly granted summary judgment to the defendants.
The facts relevant to this review are not in dispute. On November 7, 1987, Saenz, while he was an inmate of the Columbia Correctional Institution (CCI), was involved in an altercation with a correctional officer. On November 10, 1987, Saenz was charged with offenses arising out of the November 7 altercation and was served with a Notice of Major Disciplinary Hearing Rights regarding those offenses, which advised Saenz that a staff advocate was appointed to represent him at the inmate disciplinary hearing.
On his Request for Attendance of Witnesses, dated November 11, 1987, Saenz requested that Dr. Eugene Strangman, 3 a CCI employee, appear at his disciplinary hearing. The security director noted on Saenz's request for witnesses,
On November 19, 1987, Saenz's disciplinary hearing was held before the adjustment committee (the committee). The committee consisted of defendants Colleen James and Marv Prieve. Saenz told the committee, "I plead not guilty, my due process is being violated, I never received notice of the hearing." The committee found Saenz guilty and sentenced him to 10 days' cell confinement and 60 days' program segregation. The committee stated, in relevant part, the following reason for its decision:
On November 21, 1987, Saenz sought review of the committee's decision by filing an Appeal of Adjustment Committee or Hearing Officer's Decision. In said appeal form, Saenz stated the following reason for appealing the committee's finding of guilt:
I was denied the right to have a witness at my hearing without a reason set forth in the record as to why my witness would not be available for testimony which is required by HSS 303.81. Prior to the hearing I was never notify [sic] of the date, time and place of the hearing. 'Notice of Major Disciplinary Hearing Rights.' I inform [sic] the committee I was not prepare [sic].
The committee's finding of guilt was affirmed on December 4, 1987, by defendant James P. Murphy, the superintendent at CCI.
Saenz commenced a sec. 1983 action against James P. Murphy, Colleen James, and Marv Prieve (the defendants) on January 13, 1988, alleging, inter alia, 4 that the defendants violated his constitutional right to call witnesses by failing to either produce Dr. Strangman at the disciplinary hearing or obtain a written statement from the doctor and explain why he could not appear in person. The defendants subsequently filed a motion for summary judgment against Saenz, arguing that the disciplinary hearing afforded Saenz due process because it provided him with a meaningful opportunity to be heard on the charges lodged against him. The defendants further argued that Saenz's right to call witnesses was not violated because, pursuant to Wis.Admin.Code sec. HSS 303.81(5) (April 1985), provision was made to obtain Dr. Strangman's statement when it was determined that he could not attend the hearing.
In opposition to the motion for summary judgment, Saenz relied upon Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Wis.Admin.Code secs. HSS 303.81(2)-(5) and (7) (April 1985). 5 Saenz argued that under Wolff he had a constitutional right to have Dr. Strangman present at his disciplinary hearing as a witness unless the doctor's presence would be unduly hazardous to institutional safety or correctional goals. Saenz further argued that the Wisconsin Administrative Code sections cited above recognize his constitutional right to call witnesses.
The circuit court considered the defendants' motion for summary judgment on briefs. By order dated October 27, 1988, the circuit court granted summary judgment to all the defendants, dismissing the complaint filed against them. In granting the motion, the circuit court ruled that Saenz was accorded due process of law under Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 873-74, 74 L.Ed.2d 675 (1983), because he "was given notice of the charges against him, was given an opportunity to respond, and the evidence was reviewed by a decisionmaker." Accordingly, the circuit court concluded that Saenz did not have a sec. 1983 claim against the defendants.
Saenz appealed from the order of the circuit court dismissing the action. Saenz and the defendants essentially presented the same arguments to the court of appeals that they presented to the circuit court.
The court of appeals held that Saenz's constitutional right to call witnesses under Wolff was violated because Dr. Strangman was not present at the hearing, and the defendants did not claim that his presence at the hearing as a witness would have been unduly hazardous to institutional safety or correctional goals. The court of appeals further held that the substitution of a signed statement for the testimony of an unavailable witness satisfies Wolff 's requirement that an inmate be allowed to call witnesses at a disciplinary hearing. However, the court of appeals noted the record does not contain a statement from Dr. Strangman in the disciplinary hearing exhibits or any evidence that the hearing officer attempted to obtain a signed statement from Dr. Strangman as required by Wis.Admin.Code sec. HSS 303.81(4). Accordingly, the court of appeals concluded that Saenz was entitled to judgment on his sec. 1983 claim and remanded the action for a trial on damages only. Saenz, 153 Wis.2d at 681-82, 451 N.W.2d 780.
The defendants petitioned this court for review of the decision of the court of appeals, which we granted.
This court applies the standards set forth in sec. 802.08(2), Stats., in the same manner as the circuit court when it reviews the grant of a motion for summary judgment. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). A court employs a standard two-step procedure when evaluating the propriety of a motion for summary judgment. First, it examines the pleadings to determine if a claim for relief has been stated. Second, if a claim for relief has been stated, the court determines if there are any triable issues of material fact which preclude the grant of summary judgment. Id. at 314-15, 401 N.W.2d 816. If there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be granted. Section 802.08(2), Stats.
Saenz's complaint does state a claim for relief because it alleges that, despite Saenz's request that Dr. Strangman be called as a witness at his disciplinary hearing, Dr. Strangman was not present at the disciplinary hearing, and a signed, written statement was not provided in lieu of the doctor's personal appearance. Those factual allegations state a claim for relief under sec. 1983 because, if they are proven at trial, they constitute a deprivation of due process under Wolff, 418 U.S. at 566-67, 94 S.Ct. at 2979-80. 6 However, the record shows that the defendants are entitled to summary judgment as a matter of law because Saenz waived his right to call Dr. Strangman as a witness.
Generally, an issue is waived if it is not raised before the trier of fact. Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140 (1980). In the case at bar, the trier of fact at the disciplinary hearing was the adjustment committee. Saenz did not, before the adjustment committee, object to the fact that Dr. Strangman was not present at the hearing nor was his signed, written statement available. At the disciplinary hearing, Saenz only objected to the notice, or alleged lack thereof, he had of the hearing before he walked out of the hearing. 7 The court of appeals dismissed Saenz's claim of inadequate notice, and Saenz did not seek review of that dismissal in this court.
Furthermore, at oral argument before this court Saenz's counsel appeared to...
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