White v. Boards-Bey

• Decision Date: 20 March 2014
• Docket Number: No. 2012–SC–000481–DG.,2012–SC–000481–DG.
• Citation: 426 S.W.3d 569
• Court: United States State Supreme Court — District of Kentucky
• Parties: Randy WHITE, Billy Herrin and D. Ellis, Appellants v. Clifton BOARDS–BEY, Appellee.

426 S.W.3d 569

Randy WHITE, Billy Herrin and D. Ellis, Appellants

v.Clifton BOARDS–BEY, Appellee.

No. 2012–SC–000481–DG.

Supreme Court of Kentucky.

March 20, 2014.

Allison Rene Brown, Department of Corrections, Office of Legal Services, Counsel for Appellants.

Margaret Anne Ivie, Assistant Public Advocate, Department of Public Advocacy, Counsel for Appellee.

Opinion of the Court by Justice CUNNINGHAM.

Appellee, Clifton Boards–Bey, is currently in the custody of the Kentucky Department of Corrections (“DOC”). While serving time at Northpoint Training Center (“NTC”), Boards–Bey was allegedly involved in a riot which ensued on August 21, 2009. Correctional Officer Stefany R. Thornberry investigated the riot. Officer Thornberry interviewed officers who, after witnessing the melee, could verify specific inmates who had violated the Kentucky Department of Corrections Policy and Procedures (“CPP”) during the riot.

Correctional Lieutenant J. Phillips notified Officer Thornberry of an incident that occurred during the riot involving Boards–Bey. In particular, Lieutenant Phillips stated that, while the entire prison was on “lock-down status,” Boards–Bey was outside of Dorm 1 with a group of inmates, yelling and throwing objects at NTC employees.Lieutenant Phillips also stated that Boards–Bey chased him from Dorm 1 to the prison kitchen. Based entirely on Lieutenant Phillips' interview, Officer Thornberry completed a disciplinary “write-up” of Boards–Bey.

Subsequently, Boards–Bey was transferred to the Green River Correctional Complex (“GRCC”). Sergeant Darime Ellis took over Officer Thornberry's investigation and interviewed Boards–Bey. During the interview, Boards–Bey maintained his innocence and stated that Lieutenant Phillips had fabricated the entire incident. Additionally, Boards–Bey requested that three witnesses be questioned. He claimed that these three witnesses would corroborate his version of events. The first two witnesses were NTC inmates and were present with Boards–Bey when the riot occurred. Boards–Bey also listed Lieutenant Phillips as a witness, claiming that he would recant his former statements and testify that Boards–Bey was innocent. Sergeant Ellis, however, failed to interview the three witnesses. Ultimately, Sergeant Ellis submitted a disciplinary report against Boards–Bey for violating Kentucky Department of Corrections Policies and Procedures (CPP) 15.2, Category VII, Item 4, “Physical Action Resulting in the Death or Injury of an Employee or Non–Inmate.”

On October 25, 2009, Boards–Bey received notice of the charges. On October 28, 2009, a disciplinary hearing was conducted by a single Adjustment Committee Officer (“ACO”), Lieutenant Billy Herrin. Boards–Bey was represented by inmate “Legal Aide/Staff Counsel.” During the hearing, Boards–Bey failed to call any witnesses or present evidence. The Hearing Disciplinary Report Form summarizes the hearing as follows:

Witnesses: Lt. Phillips, Inmate Anderson, Inmate Powell-waived by Inmate Boards in the hearing due to Inmate Boards stating that he did not want to talk in the hearing and he wanted an attorney.

Findings: Inmate Boards was present with Legal Aide Donald Violet. Inmate pled NOT GUILTY in the hearing. Inmate Boards was read hisMirandaRights[ Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] in the hearing and Inmate Boards stated that he did not want to speak to me. I find that Inmate Boards did commit the offense ... based on the report from CTO Thornberry ... that Inmate Boards was throwing items at NTC staff in front of dorm one and was chasing Lt. Phillips from dorm one to the kitchen....

(Emphasis added.)

Boards–Bey was sentenced to 365 days of disciplinary segregation and loss of 199 days of non-restorable good time credit. He was also ordered to pay restitution for medical costs and any other costs resulting from this violation. Boards–Bey appealed the ACO's decision to the Warden of the GRCC, Randy White. In his appeal, Boards–Bey stated the following:

I wanted a real lawyer present. I was not aware that by me asking for a lawyer to be present he could go ahead and find me guilty. I thought that he had to wait intill [sic] my lawyer got there.

Boards–Bey's appeal also stated that, at the time of the riot, he was on crutches due to an ankle injury and therefore could not have physically chased Lieutenant Phillips. On November 25, 2009, Warden White amended the charge to a violation of CPP 15.2, Category VII, Item 1, “Physical Action Against an Employee or Non–Inmate.” As a result, the Warden reduced Boards–Bey's sentence to 180 days of disciplinary segregation, but the loss of non-restorable good time credits remained at 199 days.

On November 12, 2010, Boards–Bey filed a Petition for Declaration of Rights in the Muhlenberg Circuit Court pursuant to KRS 418.040. Boards–Bey named Warden White, Lieutenant Herrin, and Sergeant Ellis as defendants (“Appellants”). Boards–Bey's petition argued that Appellants violated his constitutional rights of due process as guaranteed by the Fourteenth Amendment to the United States Constitution, and his right to be free from arbitrary and capricious actions as guaranteed under Section Two of the Kentucky Constitution.

According to Boards–Bey, these constitutional infractions occurred on two occasions. The first violation occurred during Sergeant Ellis' investigation when he failed to interview and obtain statements from the three purported witnesses. The second alleged constitutional infringement occurred when Boards–Bey was denied the right to call witnesses and present evidence in his defense during his disciplinary hearing.

On March 21, 2011, Appellants filed a motion to dismiss Boards–Bey's petition for failure to state a claim upon which relief could be granted pursuant to CR 12.02(f). On April 1, 2011, the trial court granted Appellants' motion to dismiss, stating that the ACO complied with the minimal requirements of procedural due process as outlined in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The trial court also concluded that there was sufficient evidence in the record to support the ACO's decision. Boards–Bey appealed the trial court's dismissal.

The Court of Appeals, in a 2–1 decision, reversed the trial court's dismissal and remanded the case for appropriate proceedings. The Court of Appeals concluded that Boards–Bey was denied procedural due process when Sergeant Ellis failed to interview Boards–Bey's requested witnesses and when the ACO interpreted Boards–Bey's silence as a waiver to call witnesses during his disciplinary hearing. The Court of Appeals also believed that the ACO's finding of guilt and penalty was in retaliation for Boards–Bey's invocation of his right to remain silent. We granted discretionary review.

Jurisdiction

As a threshold matter, Appellants argue that Boards–Bey failed to exhaust all administrative remedies before bringing forth his Petition for Declaration of Rights as required by KRS 454.415. Appellants failed to bring this argument before the trial court or the Court of Appeals. However, as Appellants correctly note, jurisdictional issues may be raised for the first time on appeal. Commonwealth Health Corp. v. Croslin, 920 S.W.2d 46, 47 (Ky.1996). Nonetheless, we can easily dispose of Appellants' first argument because Boards–Bey timely appealed the ACO's finding to Warden White. In his appeal, Boards–Bey complained that the ACO's finding of guilt was determined without sufficient evidence, including a lack of interviews from individuals who witnessed the alleged infraction. While Boards–Bey's appeal to Warden White failed to include terms such as “due process” or “Wolff requirements,” his appeal was clearly grounded on due process violations.

Due Process

The right to due process has two categorical distinctions: procedural due process and substantive due process. McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 3090–92, 177 L.Ed.2d 894 (2010). The former ensures fair process when protected rights are abridged, while the latter provides protection against governmental interference with certain fundamental rights that are encompassed in the terms life, liberty, and property. Id. Since Boards–Bey's punishment for the alleged violations resulted in the loss of 199 non-restorable good time credits, a protected liberty interest has been implicated. See Wolff, 418 U.S. at 557, 94 S.Ct. 2963. Thus, we must determine if Boards–Bey received the minimum requirements of procedural due process.

At its most basic level, procedural due process ensures that one is not unfairly deprived of his life, liberty, or property without receiving a hearing, adequate notice, and a neutral adjudicator. Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The appropriate amount of due process to which one is entitled is an inquiry that is often times difficult to evaluate, and it is even more convoluted when the person asserting the protected interest is lawfully incarcerated. Fortunately, the U.S. Supreme Court has provided us with the following guidance:

Of course, as we have indicated, the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.

Wolff, 418 U.S. at 556, 94 S.Ct. 2963 (internal citations omitted).

Based on these “mutual accommodations,” the U.S. Supreme Court concluded that the three following events must take place before a prisoner is deprived of a protected liberty interest: “(1) advance written...