Wagner v. State, 83-1334

• Decision Date: 20 March 1985
• Docket Number: No. 83-1334,83-1334
• Citation: 364 N.W.2d 246
• Parties: Everett WAGNER, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 246

364 N.W.2d 246

Everett WAGNER, Appellant, v. STATE of Iowa, Appellee.

No. 83-1334.

Supreme Court of Iowa.

March 20, 1985.

James Cleary, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Sp. Asst. Atty. Gen., and Layne Lindebak, Asst. Atty. Gen., for appellee.

Considered by HARRIS, P.J., and McGIVERIN, SCHULTZ, CARTER, and WOLLE, JJ.

SCHULTZ, Justice.

Applicant Everett Wagner appeals from the district court's dismissal of his application for postconviction relief under Iowa Code chapter 663A. Wagner, an inmate at the Iowa State Penitentiary, challenged the revocation of earned good time pursuant to Iowa Code section 246.41(5). ¹ He contends: (1) the procedures followed in revoking petitioner's good time violated due process in several respects: (a) that his good time was taken away because of his involvement in a hostage situation, but the disciplinary hearing notices contain no allegation of involvement in a hostage situation and the hostage situation was never mentioned at the disciplinary hearing; (b) the State failed to follow its own rules contained in an employee's manual and acted contrary to established policy and procedure; (c) a no reprisals agreement entered into by the warden and the applicant during the hostage incident was breached by the State with respect to applicant when he was disciplined for his conduct arising from such incident; and (d) that the action of the warden and the director of corrections was violative of his right to an impartial tribunal and decisionmaker; and (2) applicant was denied a fair hearing in the trial court due to an ex parte communication between the court and an assistant attorney general while his case was pending for final disposition. We find no merit in these contentions and affirm.

On September 2, 1981, a riot occurred at the Iowa State Penitentiary at Fort Madison, Iowa. In the course of the disturbance fires and property damage occurred, and staff members were held as hostages by inmates. The warden conducted negotiations between two separate groups of inmates, each holding hostages, in an attempt to end the disturbance and secure the release of the hostages. In the course of these negotiations the warden communicated orally and in writing a promise of no reprisals against certain inmates, including Wagner, for "the situation at the Iowa State Penitentiary on September 2, 1981." This promise of no reprisals was specifically amplified to mean no administrative or disciplinary proceedings or sanctions would be brought against the identified inmates. The institution returned to normal when all of the remaining hostages were released.

On September 9, 1981, Wagner was placed on report for alleged institutional rule violations which occurred during the September 2 disturbance. Wagner was the only individual on the list of the designated beneficiaries of the no reprisals agreement to be charged with institutional rule violations and to suffer disciplinary penalties. Wagner was charged with yelling and screaming at inmates; ordering and intimidating officers out of a cellhouse; and stealing a cellhouse key, a gas grenade, a walkie-talkie and 3/4 of a pound of sugar.

On September 17 a hearing was conducted on the charged violations. The disciplinary committee that was chosen to hear and decide the charges against Wagner included individuals not employed at or associated with the penitentiary. The committee found Wagner guilty of rule violations and imposed punishment of 30 days solitary, 180 days administrative segregation and suspension of honor contract. He received the committee's decision on September 17 and appealed the decision to the warden on September 18. On the same date the warden affirmed the disciplinary committee's decision.

Wagner's sentence was scheduled to expire on September 18. On that date Wagner demanded several times to be released without success. Unknown to Wagner, after the disciplinary committee's decision on September 17, Warden David Scurr recommended to the director of corrections, Hal Farrier, that 1283 days of good time earned by Wagner be forfeited pursuant to subsection 246.41(5). Subsection 246.41(5) provides that the warden shall have the power, with the approval of the state director, to deprive a prisoner of any portion or all of his good time for a fifth or subsequent rule violation. The director gave the necessary permission. Wagner's good time was forfeited on the day before his scheduled release.

Wagner's application for postconviction relief challenges the loss of his good time. The matter was heard before Judge John C. Miller who filed a ruling denying and dismissing the application on March 25, 1983. Judge Miller also denied a motion requesting a new trial and an amendment or enlargement of findings. Wagner filed a subsequent motion for a new trial alleging misconduct by Judge Miller. After a hearing, this motion was denied by Judge Harlan W. Bainter.

I. Due process. Appellant asserts that his right to due process of law as secured by the fourteenth amendment to the United States Constitution was violated. We review de novo in light of the totality of the circumstances. Kelly v. Nix, 329 N.W.2d 287, 291 (Iowa 1983).

In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court established minimum requirements of procedural due process to be afforded prisoners in disciplinary proceedings. We recently applied the constitutional guarantee of "some form of due process" to a hearing for deprivation of a prisoner's "good time" because of misbehavior in Niday v. State, 353 N.W.2d 92 (Iowa 1984). The narrow range of protected liberty interests that are afforded a prisoner must be flexible and attuned to the setting by balancing and adjusting the prisoner's rights against the needs of the prison. Id. at 93-94. In this context we address Wagner's claims.

A. Notice of involvement in hostage situation. Wagner urges that the disciplinary notices filed against him contained no allegations relating to his alleged involvement in the hostage situation on September 2. He further claims that this topic was not touched upon in the disciplinary hearing on September 17; however, he urges that the warden and director concede that his good time was taken away because of his involvement in the hostage situation. He concludes that he was not afforded the fundamental right of notice and opportunity to be heard.

Written notice of the disciplinary charges must be given to the accused in order to inform him of the charges and to allow him to prepare a defense. Wolff, 418 U.S. at 564, 94 S.Ct. at 2979, 41 L.Ed.2d at 956. The right to notice and hearing is confined to the disciplinary action; due process does not mandate an additional hearing, preceded by notice, before the forfeiture of the prisoner's good time. Picard v. State, 339 N.W.2d 368, 373 (Iowa 1983).

Wagner was afforded proper notice concerning his rule violations. Wagner misinterprets the statements of the warden and director in making his claim. Our review of the facts indicate that Wagner's good time was revoked because of the number of disciplinary rule violations, including previous rule violations. The latest violations arose from Wagner's theft of a cellhouse key, a walkie-talkie and a gas grenade. He additionally threatened and intimidated prison staff members to give up a key and evacuate the cellhouse. He was given notice of these charges. Wagner did become involved in the taking and holding of hostages, but was not charged specifically with this misconduct. Most of the charged misconduct could be characterized as a part of the hostage situation. We find the notice of misconduct properly informed Wagner of the violations which led to the revocation of his good time.

B. Failure to follow its own rules. Wagner urges that an Employee's Manual of the Department of Social Services provides that the disciplinary committee must make an appropriate recommendation to the warden when revocation of good time is contemplated. No such recommendation was made. Wagner argues that his due process rights were violated because the institution failed to follow its own rules. The State urges that the Employee's Manual was not admitted into evidence and may not be considered on appeal.

The trial court found that the prison officials were permanently enjoined from conducting prison disciplinary proceedings in contravention of the guidelines set forth in the rule 804 policy, Kelly v. Nix, 329 N.W.2d 287, 293 (Iowa 1983), and that the rules in the manual were different and in contravention of the injunction. The trial court further concluded that the language of the provision in the manual did not require a recommendation from the committee as a prerequisite to deprivation of good time. We agree with the trial court.

In its ruling the trial court set out the pertinent part of the Employee's Manual which Wagner relies upon as follows:

Whenever the committee desires to take from the resident more than the number of days of good conduct time specified in Iowa Code section 246.41(5) as the result of a resident's fifth or subsequent infraction, the disciplinary committee shall note the maximum amount it believes shall be taken in the decision.

The warden testified he did not use the quoted provision; he used the Red Rulebook that set forth the rule 804 policy.

Wagner's complaint must fail for several reasons. He failed to establish that the Employee's Manual was binding on the warden or that it should be allowed to contravene the rule 804 policy established by federal court order. Additionally, our interpretation of the language in the Employee's Manual is that it places no limitation on the statutory authority of the warden to suspend good time with the approval of the director. The manual only provides for a committee recommendation to the warden regarding the time "it believes shall be taken."

C. Revocation...