Thomas v. Haney

Decision Date08 July 2011
Docket NumberNO. 2010-CA-001026-MR,2010-CA-001026-MR
PartiesONTARIO THOMAS APPELLANT v. STEVE HANEY; WALTER GRIBBINS; BRIAN TAYLOR; DON DRURY; AND CARL GEFFUL APPELLEES
CourtKentucky Court of Appeals

TO BE PUBLISHED

APPEAL FROM LYON CIRCUIT COURT

HONORABLE CLARENCE A. WOODALL III, JUDGE

ACTION NO. 09-CI-00186

OPINION

REVERSING AND REMANDING

BEFORE: CAPERTON, MOORE, AND STUMBO, JUDGES.

MOORE, JUDGE:

Ontario Thomas, proceeding pro se, appeals the Lyon Circuit Court's order dismissing his Petition for Declaration of Rights. After a careful review of the record, we reverse because there is no evidence supporting thedisciplinary charge against Thomas. We accordingly reverse and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts as found by the circuit court are as follows:

On or about April 17, 2009, Inmate Jeffery Elam was assaulted while housed at the North Point Training Center [NTC]. After two vacated Adjustment Committee decisions and a third hearing, [Thomas] was ultimately charged with and convicted of a Category 7, Item 2 institutional infraction, "physical action resulting in death or injury of an inmate." As a result of this decision, [Thomas] received one hundred eighty (180) days of disciplinary segregation, forfeited two (2) years of non-restorable good time credit, and was ordered to pay fifteen hundred ($1,500) in restitution for medical expenses.
By way of relief, [Thomas] asks this Court to remand this case by vacating the NTC Adjustment Committee findings, restore good-time credits, and restore what has been forfeited as a result of this action.
As noted by the Respondents in their motion to dismiss and supported by additional materials provided by [Thomas] in his response, the underlying action that is the basis of this petition, was rewritten in accordance with the Kentucky Corrections Policies and Procedures (CPP 15.6(II)(F)(8)). This particular CPP grants the Warden the authority to order a disciplinary report vacated upon justification and may allow it to be re-investigated or reheard, or both. Further, it is prudent at this juncture to note that Black's Law Dictionary defines vacate as "to render an act as void."
Since the basis of this petition, the underlying Adjustment Committee decision, was vacated and re-investigated or reheard, [Thomas] received the relief he sought in his initial Petition. However, since that time and as noted above and presented in [Thomas's]subsequent motions, [Thomas] has been re-tried and convicted of the same institutional infraction resulting in the same penalties.

Thus, citing "judicial efficiency and economy" as its reasons, the circuit court decided to address the issues presented in the case.

The court found that "a review of the record shows that the Adjustment Committee did in fact read the confidential information gathered by the investigating officer and believed it to be true in accordance to" CPP 9.18. The court noted that the "confidential information is not part of the record as revealing this information creates the possibility of retaliatory action against the confidential informants." Ultimately, the court granted the motion to dismiss Thomas's Petition for Declaration of Rights after finding that "the overall record shows the Kentucky Department of Corrections acted within the scope of the Corrections Policies and Procedures Manual and provided limited due process for [Thomas]."

Thomas now appeals, contending that: (a) his due process rights were violated when the Adjustment Committee made no determination concerning the reliability and credibility of the confidential informant(s), and when the Committee failed to explain its decision and factual findings; (b) his due process rights were violated when he was ordered to pay $1,500 in restitution, despite there being no verification in the record to substantiate this amount; and (c) his due process rights were violated when the Adjustment Committee "continued to try and convict him of the same charged incident report twice more while such was pending in court after the wardens' review and denial."

II. STANDARD OF REVIEW

A motion to dismiss a petition for declaration of rights arising out of a prison disciplinary proceeding should be treated as a motion for summary judgment. See Smith v. O'Dea, 939 S.W.2d 353, 355 n.1 (Ky. App. 1997). "The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., 807 S.W.2d 476, 480 (Ky. 1991). "Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact." Id. Further, "the movant must convince the court, by the evidence of record, of the nonexistence of an issue of material fact." Id. at 482.

Where, as here, principles of administrative law and appellate procedure bear upon the court's decision, the usual summary judgment analysis must be qualified. The problem is to reconcile the requirement under the general summary judgment standard to view as favorably to the non-moving party as is reasonably possible the facts and any inferences drawn therefrom, with a reviewing court's duty to acknowledge an agency's discretionary authority, its expertise, and its superior access to evidence. In these circumstances we believe summary judgment for the Corrections Department is proper if and only if the inmate's petition and any supporting materials, construed in light of the entire agency record (including, if submitted, administrators' affidavits describing the context of their acts or decisions), does not raise specific,genuine issues of material fact sufficient to overcome the presumption of agency propriety, and the Department is entitled to judgment as a matter of law. The court must be sensitive to the possibility of prison abuses and not dismiss legitimate petitions merely because of unskilled presentations. Jackson v. Cain, 864 F.2d 1235 (5th Cir.1989). However, it must also be free to respond expeditiously to meritless petitions. By requiring inmates to plead with a fairly high degree of factual specificity and by reading their allegations in light of the full agency record, courts will be better able to perform both aspects of this task.

Smith, 939 S.W.2d at 356.

III. ANALYSIS

Thomas first contends that his due process rights were violated because there was no determination regarding the reliability and credibility of the confidential informant(s) upon which the Adjustment Committee based its decision, and because the Committee did not explain its decision or its factual findings.

The U.S. Supreme Court explained the evidentiary threshold in prison disciplinary proceedings as follows:

Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. . . . The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction . . . and neither the amount of evidence necessary to support such a conviction . . . nor any other standard greater than some evidence applies in this context.

Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 456, 105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356 (1985). Consequently, prison disciplinary proceedings are subject to a lesser standard of due process than a criminal case because "prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due to a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974).

However, an inmate involved in prison disciplinary proceedings does retain certain protected rights. The U.S. Supreme Court recognized this in holding:

[w]here a prison disciplinary hearing may result in the loss of good time credits . . . the inmate must receive: (1) advance written 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. . . . [T]he provision for a written record helps to assure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental human rights may have been abridged, will act fairly. . . . We now hold that revocation of good time does not comport with the minimum requirements of procedural due process . . . unless the findings of the prison disciplinary board are supported by some evidence in the record.

Walpole, 472 U.S. 445 at 454, 105 S. Ct. 2768 at 2773 (internal quotation marks omitted and emphasis added). Kentucky has similarly held that this "some evidence" standard of judicial review of prison disciplinary proceedings does notoffend Section 2 of the Kentucky Constitution. See Smith, 939 S.W.2d at 358; Webb v. Sharp, 223 S.W.3d 113, 118 (Ky. 2007).

This Court must decide what qualifies as "some evidence" in relation to confidential informants in the framework of prison disciplinary proceedings. The U.S. Supreme Court set out broad basic requirements for "some evidence" when it held:

[T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good
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