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Washington Prisoner Has Right to Due Process at Disciplinary Hearing
In an unpublished decision, the Washington Court of Appeals, Division One, held that pro se prisoner, Eric Felton, was denied his due process rights at a prison disciplinary hearing.
In 1998, Felton was charged with arranging the assault of another prisoner and being affiliated with a group in the prison that was a threat to the security of the prison. He was found guilty of the infractions, resulting in a sanction of 10 days isolation, 20 days in segregation, and 90 days loss of good time.
On appeal, Felton alleged that his due process rights were violated because he was found guilty based on unreliable, confidential information alone. The hearing officer stated that he reviewed the confidential information and found it to be credible and reliable. The court of held that when a prison disciplinary hearing is based on confidential information, the record must contain some factual information from which the hearing officer can reasonably conclude that the source of the confidential information was reliable.
Therefore, the court of appeals held that the hearing officer's conclusory assertions of reliability by themselves, are not sufficient to support a finding that the information was reliable, and that although the affidavit showed what the hearing officer used to conclude that the information was reliable, he did not state that the informant had personal knowledge and personal reliability in the past. The court also held that the post hoc affidavit the officer submitted was not sufficient to meet the threshold showing of reliability. The court set aside the finding of guilt by the hearing officer and instructed the Department of Corrections to restore the good time that was taken as a result of the infraction. See: In the matter of Personal Restraint of Felton, 2001 WL 882101 (Wash.App.Div.1).
In 1998, Felton was charged with arranging the assault of another prisoner and being affiliated with a group in the prison that was a threat to the security of the prison. He was found guilty of the infractions, resulting in a sanction of 10 days isolation, 20 days in segregation, and 90 days loss of good time.
On appeal, Felton alleged that his due process rights were violated because he was found guilty based on unreliable, confidential information alone. The hearing officer stated that he reviewed the confidential information and found it to be credible and reliable. The court of held that when a prison disciplinary hearing is based on confidential information, the record must contain some factual information from which the hearing officer can reasonably conclude that the source of the confidential information was reliable.
Therefore, the court of appeals held that the hearing officer's conclusory assertions of reliability by themselves, are not sufficient to support a finding that the information was reliable, and that although the affidavit showed what the hearing officer used to conclude that the information was reliable, he did not state that the informant had personal knowledge and personal reliability in the past. The court also held that the post hoc affidavit the officer submitted was not sufficient to meet the threshold showing of reliability. The court set aside the finding of guilt by the hearing officer and instructed the Department of Corrections to restore the good time that was taken as a result of the infraction. See: In the matter of Personal Restraint of Felton, 2001 WL 882101 (Wash.App.Div.1).
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Related legal case
In the matter of Personal Restraint of Felton
| Year | 2001 |
|---|---|
| Cite | 2001 WL 882101 (Wash.App.Div.1) |
| Level | State Court of Appeals |
| Conclusion | Bench Verdict |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | Granted |
Not Reported in P.3d, 107 Wash.App. 1038, 2001 WL 882101 (Wash.App. Div. 1)
NOTE: UNPUBLISHED OPINION, SEE RCWA 2.06.040
Court of Appeals of Washington, Division 1.
In the Matter of the Personal RESTRAINT OF Eric J. FELTON, Petitioner.
No. 44430-1-I.
Aug. 6, 2001.
Eric J. Felton, Appearing pro se, Aberdeen, WA, Jeffrey D. Goodwin, Edmonds, WA, for petitioner(s).
John S. Blonien, Assistant Attorney General, Douglas W. Carr, Asst Atty General, Olympia, WA, for respondent(s).
UNPUBLISHED OPINION
PER CURIAM.
*1 Inmate Eric Felton filed this personal restraint petition challenging the sanctions imposed following a prison disciplinary hearing. An inmate is entitled to certain minimal due process protections when being disciplined for misconduct. Because the Department of Corrections has not shown that Felton received the process due him at the challenged hearing, we hold that the hearing officer's decision should be set aside.
FACTS
On October 22, 1998, Felton was accused of arranging the assault of another inmate and being affiliated with a security threat group. He was charged with violating prison rules 506 [FN1] and 734. [FN2] The details of the rule violations were described in the serious infraction report as follows:
FN1. 'Threatening another with bodily harm or with any offense against another person, property or family.' WAC 137-28-260.
FN2. 'Participating or engaging in the activities of any unauthorized club, organization, gang or security threat group....' WAC 137.28.260.
Based on confidential information, inmate Felton was involved in having an inmate assaulted, and continued threats toward an inmate in U-6. Inmate Felton made statements about affiliations with a security threat group, per the same confidential source.
See C.I. file in the Captain's office.
At the subsequent disciplinary hearing, petitioner was found guilty of the charges based on the confidential information. The hearing officer sanctioned Felton with 10 days isolation, 30 days segregation, and the loss of 90 days good conduct time.
DECISION
Review of disciplinary proceedings is limited to determining whether the action taken was 'so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding.' [FN3] A disciplinary action is not arbitrary and capricious if the petitioner was afforded the minimum due process protections applicable in prison disciplinary proceedings, and the decision is supported by some evidence. [FN4] As applied here, due process requires that the inmate receive adequate notice of the alleged violation before a hearing, an opportunity to present evidence and call witnesses (when not unduly hazardous to institutional safety and correctional goals), and a written statement of the evidence relied on and reasons for the disciplinary action. [FN5]
FN3. In re Personal Restraint of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984).
FN4. In re Personal Restraint of Burton, 80 Wn.App. 573, 585, 910 P.2d 1295 (1996) (regarding procedural requirements); In re Personal Restraint of Anderson, 112 Wn.2d 546, 548-49, 772 P.2d 510 (1989) (regarding necessary quantum of evidence).
FN5. Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Burton, 80 Wn.App. at 585.
Felton contends, among other things, that his due process rights were violated when the hearing officer relied on confidential information in finding him guilty of the charged infractions. Because nothing in the record currently before this court clearly establishes that the source of the confidential information was reliable, we agree.
When a prison disciplinary proceeding is based on confidential information, the record must contain some factual information from which the hearing officer can reasonably conclude that the source of the confidential information was reliable. [FN6] There are four generally recognized ways of establishing the reliability of a confidential prison informant: (1) the oath of the investigating officer as to the truth of his report containing confidential information; (2) corroborating testimony; (3) a statement on the record by the hearing officer that he had firsthand knowledge of the source of the information and considered it reliable based on a past record of reliability; or (4) in camera review of the material documenting the investigator's assessment of the informant's credibility. [FN7] A court's review of a prison official's determination of reliability should be deferential. [FN8]
FN6. Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir.1987), cert. denied, 487 U.S. 1207, 108 S.Ct. 2851, 101 L.Ed.2d 888 (1988); Wells v. Israel, 854 F.2d 995, 999 (7th Cir.1988).
FN7. Wells, 865 F.2d at 999.
FN8. Zimmerlee, 831 F.2d at 186.
*2 Here, the hearing officer stated on the record that he reviewed the confidential information and found it to be credible and reliable. But these conclusory assertions of reliability, by themselves, are not sufficient to support a finding that the information was reliable. In an affidavit filed post hoc, the hearing officer said he considered whether the informant's information was first-hand, whether the informant had provided reliable information in the past or had anything to gain by providing the information. However, although the affidavit tells us what the hearing officer considered, it does not indicate what led him to conclude that the information was reliable. He did not state the informant had personal knowledge and personal reliability in the past.
The hearing officer has since submitted yet another post hoc affidavit in which he explains in greater detail the basis for his finding of reliability. But the second affidavit appears to have been tailored to correct a perceived deficiency in the first affidavit. Moreover, the two affidavits are inconsistent with one another. The first and second affidavits speak of confidential information from a single source, but the second affidavit goes on to claim, 'The confidential information was based upon first hand information from several inmates who had personally witnessed inmate Felton threaten another inmate with bodily harm.' The affidavits do not establish that the confidential informant testified from personal knowledge rather than testifying to hearsay. Even assuming this type of post hoc evidence may properly be used to support a finding of reliability, [FN9] the two statements provided by the hearing officer in this case are inadequate to meet that threshold showing of reliability. We therefore set aside the hearing officer's decision and remand to the Department of Corrections with instructions that the good time forfeited as a result of the serious infractions should be restored to Felton. [FN10]
FN9. See Hensley v. Wilson, 850 F.2d 269 (6th Cir.1988) (indicating that due process requires a contemporaneous recording of evidence relied on at the hearing. But see Taylor v. Wallace, 931 F.2d 698, 702 (10th Cir.1991) ('{E}ven though preferable, the Federal Constitution does not require a contemporaneous written explanation as the only permissible method of discharging the correction officials' burden of showing that they had a legitimate basis for accepting the confidential informant's information.').
FN10. In view of our holding, we find it unnecessary to address Felton's remaining claims of error.
Not Reported in P.3d, 107 Wash.App. 1038, 2001 WL 882101 (Wash.App. Div. 1)
END OF DOCUMENT
NOTE: UNPUBLISHED OPINION, SEE RCWA 2.06.040
Court of Appeals of Washington, Division 1.
In the Matter of the Personal RESTRAINT OF Eric J. FELTON, Petitioner.
No. 44430-1-I.
Aug. 6, 2001.
Eric J. Felton, Appearing pro se, Aberdeen, WA, Jeffrey D. Goodwin, Edmonds, WA, for petitioner(s).
John S. Blonien, Assistant Attorney General, Douglas W. Carr, Asst Atty General, Olympia, WA, for respondent(s).
UNPUBLISHED OPINION
PER CURIAM.
*1 Inmate Eric Felton filed this personal restraint petition challenging the sanctions imposed following a prison disciplinary hearing. An inmate is entitled to certain minimal due process protections when being disciplined for misconduct. Because the Department of Corrections has not shown that Felton received the process due him at the challenged hearing, we hold that the hearing officer's decision should be set aside.
FACTS
On October 22, 1998, Felton was accused of arranging the assault of another inmate and being affiliated with a security threat group. He was charged with violating prison rules 506 [FN1] and 734. [FN2] The details of the rule violations were described in the serious infraction report as follows:
FN1. 'Threatening another with bodily harm or with any offense against another person, property or family.' WAC 137-28-260.
FN2. 'Participating or engaging in the activities of any unauthorized club, organization, gang or security threat group....' WAC 137.28.260.
Based on confidential information, inmate Felton was involved in having an inmate assaulted, and continued threats toward an inmate in U-6. Inmate Felton made statements about affiliations with a security threat group, per the same confidential source.
See C.I. file in the Captain's office.
At the subsequent disciplinary hearing, petitioner was found guilty of the charges based on the confidential information. The hearing officer sanctioned Felton with 10 days isolation, 30 days segregation, and the loss of 90 days good conduct time.
DECISION
Review of disciplinary proceedings is limited to determining whether the action taken was 'so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding.' [FN3] A disciplinary action is not arbitrary and capricious if the petitioner was afforded the minimum due process protections applicable in prison disciplinary proceedings, and the decision is supported by some evidence. [FN4] As applied here, due process requires that the inmate receive adequate notice of the alleged violation before a hearing, an opportunity to present evidence and call witnesses (when not unduly hazardous to institutional safety and correctional goals), and a written statement of the evidence relied on and reasons for the disciplinary action. [FN5]
FN3. In re Personal Restraint of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984).
FN4. In re Personal Restraint of Burton, 80 Wn.App. 573, 585, 910 P.2d 1295 (1996) (regarding procedural requirements); In re Personal Restraint of Anderson, 112 Wn.2d 546, 548-49, 772 P.2d 510 (1989) (regarding necessary quantum of evidence).
FN5. Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Burton, 80 Wn.App. at 585.
Felton contends, among other things, that his due process rights were violated when the hearing officer relied on confidential information in finding him guilty of the charged infractions. Because nothing in the record currently before this court clearly establishes that the source of the confidential information was reliable, we agree.
When a prison disciplinary proceeding is based on confidential information, the record must contain some factual information from which the hearing officer can reasonably conclude that the source of the confidential information was reliable. [FN6] There are four generally recognized ways of establishing the reliability of a confidential prison informant: (1) the oath of the investigating officer as to the truth of his report containing confidential information; (2) corroborating testimony; (3) a statement on the record by the hearing officer that he had firsthand knowledge of the source of the information and considered it reliable based on a past record of reliability; or (4) in camera review of the material documenting the investigator's assessment of the informant's credibility. [FN7] A court's review of a prison official's determination of reliability should be deferential. [FN8]
FN6. Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir.1987), cert. denied, 487 U.S. 1207, 108 S.Ct. 2851, 101 L.Ed.2d 888 (1988); Wells v. Israel, 854 F.2d 995, 999 (7th Cir.1988).
FN7. Wells, 865 F.2d at 999.
FN8. Zimmerlee, 831 F.2d at 186.
*2 Here, the hearing officer stated on the record that he reviewed the confidential information and found it to be credible and reliable. But these conclusory assertions of reliability, by themselves, are not sufficient to support a finding that the information was reliable. In an affidavit filed post hoc, the hearing officer said he considered whether the informant's information was first-hand, whether the informant had provided reliable information in the past or had anything to gain by providing the information. However, although the affidavit tells us what the hearing officer considered, it does not indicate what led him to conclude that the information was reliable. He did not state the informant had personal knowledge and personal reliability in the past.
The hearing officer has since submitted yet another post hoc affidavit in which he explains in greater detail the basis for his finding of reliability. But the second affidavit appears to have been tailored to correct a perceived deficiency in the first affidavit. Moreover, the two affidavits are inconsistent with one another. The first and second affidavits speak of confidential information from a single source, but the second affidavit goes on to claim, 'The confidential information was based upon first hand information from several inmates who had personally witnessed inmate Felton threaten another inmate with bodily harm.' The affidavits do not establish that the confidential informant testified from personal knowledge rather than testifying to hearsay. Even assuming this type of post hoc evidence may properly be used to support a finding of reliability, [FN9] the two statements provided by the hearing officer in this case are inadequate to meet that threshold showing of reliability. We therefore set aside the hearing officer's decision and remand to the Department of Corrections with instructions that the good time forfeited as a result of the serious infractions should be restored to Felton. [FN10]
FN9. See Hensley v. Wilson, 850 F.2d 269 (6th Cir.1988) (indicating that due process requires a contemporaneous recording of evidence relied on at the hearing. But see Taylor v. Wallace, 931 F.2d 698, 702 (10th Cir.1991) ('{E}ven though preferable, the Federal Constitution does not require a contemporaneous written explanation as the only permissible method of discharging the correction officials' burden of showing that they had a legitimate basis for accepting the confidential informant's information.').
FN10. In view of our holding, we find it unnecessary to address Felton's remaining claims of error.
Not Reported in P.3d, 107 Wash.App. 1038, 2001 WL 882101 (Wash.App. Div. 1)
END OF DOCUMENT