In the Matter of the Personal Restraint of Johnathon Monta, Petitioner.

No. 35657-1-II

COURT OF APPEALS OF WASHINGTON, DIVISION TWO

2008 Wash. App. LEXIS 2491


October 21, 2008, Filed

NOTICE: RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.


OPINION BY: Elaine Houghton

OPINION


¶1 Houghton Click for Enhanced Coverage Linking Searches, J. ? In a personal restraint petition (PRP), Johnathon Monta claims that the Department of Corrections (DOC) violated his due process rights when it denied his requests to review confidential evidence related to a disciplinary hearing against him. We deny Monta's PRP.

FACTS

¶2 Monta is currently incarcerated at the Washington State Penitentiary in Walla Walla. The disciplinary hearing that gave rise to his PRP occurred when he resided at McNeil Island Corrections Center. McNeil Island staff member George Gilbert filed the DOC's initial serious infraction report on April 7, 2006. The report summarized a confidential investigation that led to Monta's disciplinary hearing.

¶3 Gilbert's report explains that a confidential source intercepted [*2] ?several envelops [sic] that contained money orders, which were mailed to a person in the Lakewood Washington area from offenders and offender's family members.? PRP Ex. 5. The confidential informant (CI) turned them over to the Lakewood Police Department. The CI stated that ?the address in Lakewood Washington was for inmates to send money to, which was payment for drugs that were being brought into the facility.? PRP Ex. 5.

¶4 During his investigation, Gilbert linked one of the addresses on the envelopes to Monta's relatives, who lived in Spanaway. Gilbert's report states that the envelope with the Spanaway address contained two $ 50 money orders, dated November 21, 2005, and January 10, 2006. From this, Gilbert concluded that Monta instructed a family member to send money to the address in Lakewood that the CI claimed to be a money drop for drugs.

¶5 McNeil Island staff presented Monta with a hearing notice/appearance waiver on April 18, 2006, for an April 24 hearing. Monta requested two continuances, once on April 24 and once on May 2, to allow him time to review evidence and marshal witnesses. Specifically, he requested a statement from Gilbert, a statement from the CI, copies of the money [*3] orders, copies of the envelopes, and any other evidence.

¶6 Gilbert replied to Monta's request for a statement by writing in an email that his report would stand as his witness statement. DOC denied Monta's request for a statement from the CI, explaining the CI worked at another facility and was unavailable.

¶7 Monta filed a public records request to obtain copies of the envelopes and money orders. On May 8, McNeil Island staff forwarded the request to the appropriate department located at the facility. On May 10, McNeil Island staff replied to Monta's request, writing that staff would search for available documents but confidential information would be summarized.

¶8 On May 22, Monta appeared at his disciplinary hearing held before Lieutenant Jurgensen. Monta presented Gilbert's report and two affidavits from family members: one from Larry Monta and one from Johnna Hibdon. Larry Monta's and Hibdon's affidavits stated both were residents of the same Spanaway address that the CI linked to the envelope with the money orders. Both affiants swore the address listed was a trailer court address used by many residents, and they further stated no money orders had been sent from their address for Monta. [*4] 1

FOOTNOTES

1 Hibdon's affidavit contradicts this position when she states, ?In fact any money orders that were sent from this address were sent to Johnathon Monta in Prison and that is the only time.? PRP Ex. 2C.


¶9 At the hearing, Monta argued his name was not on the money orders or envelopes, the return address was a trailer court address used by many people, and he had nothing to do with any drugs at McNeil Island. Jurgensen found Monta guilty of violating former WAC 137-28-260(603) (2005) 2 and sanctioned him to 30 days' confinement to quarters and loss of 90 days' good conduct time.

FOOTNOTES

2 Former WAC 137-28-260(603) (now WAC 137-25-030(603)) provides that the following is a serious disciplinary infraction: ?Possession, introduction, use or transfer of any narcotic, controlled substance, illegal drug, unauthorized drug, mind altering substance, or drug paraphernalia.?


¶10 On May 31, Monta filed an internal appeal of the disciplinary hearing. On June 6, Charles Pease, the reviewing officer in charge of the internal appeal, found Monta's disciplinary hearing proper and affirmed the findings.

¶11 Also on June 6, McNeil Island staff again wrote Monta with regard to his public records request. Staff explained that [*5] although McNeil Island had nine pages of relevant documents, his pending appeal exempted the documents from disclosure until after the proceedings concluded. Former RCW 42.17.310(1)(d) (2005). 3 Monta filed a PRP.

FOOTNOTES

3 Former RCW 42.17.310(1) provides in pertinent part: ?The following are exempt from public inspection and copying: . . . (b) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy.?


ANALYSIS

Prison Disciplinary Hearings

¶12 Monta argues DOC deprived him of his constitutional rights. He asserts he was denied due process when DOC declined to provide him with copies of the evidence used against him.

¶13 PRPs based on a constitutional error require the petitioner to show actual prejudice to obtain relief. PRPs based on nonconstitutional error require the petitioner to show ?a complete miscarriage of justice? to obtain relief. In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396, 978 P.2d 1083 (1999).

¶14 We limit our review of prison disciplinary hearings to determining whether the hearing was arbitrary and capricious such that it denied the petitioner a fundamentally fair [*6] proceeding. In re Pers. Restraint of Dyer, 143 Wn.2d 384, 395, 20 P.3d 907 (2001). Disciplinary proceedings are not arbitrary and capricious so long as they provide minimum due process protections. Gronquist, 138 Wn.2d at 396.

¶15 These minimum protections include (1) advance written notice of the charged violations; (2) the opportunity to present documentary evidence and call witnesses when not unduly hazardous to institutional safety and correctional goals; and (3) after the hearing, receipt of a written statement of the evidence relied on and the reasons for the disciplinary action. Gronquist, 138 Wn.2d at 397-98. Due process rights of prisoners are far more limited than those afforded a criminal defendant or someone on probation or parole. In re Pers. Restraint of Reismiller, 101 Wn.2d 291, 295, 678 P.2d 323 (1984). In addition to the minimum due process protections, due process evidentiary requirements are satisfied as long as some or any evidence supports the disciplinary hearing officer's decision. In re Pers. Restraint of Leland, 115 Wn. App. 517, 534-35, 61 P.3d 357 (2003).

¶16 Monta argues he was (1) unable to prepare a defense for lack of sufficient notice, (2) not allowed to view [*7] confidential information, (3) unable to call witnesses to personally attend his disciplinary hearing, and (4) no evidence supported the hearing officer's findings. Monta's disciplinary hearing provided him with minimum due process protections, satisfying each of the requirements set forth in Gronquist. 138 Wn.2d at 396-97. McNeil Island staff gave Monta more than WAC 137-28-290's required 24 hours' notice when, on April 18, 2006, it set a hearing scheduled for April 24. Further, the hearing officer allowed Monta to present evidence in the form of affidavits and written reports, which the officer then considered and summarized in his written decision. While he did not attend personally, the investigating officer submitted a written response to the hearing officer that his report would stand as his witness statement. After the hearing, the hearing officer provided Monta with a written copy of the decision clearly explaining the findings and sanctions. Finally, the investigator's written report summarized the confidential information connecting Monta to the drug money drop and it constitutes ?some evidence? as Leland required. 115 Wn. App. at 534-35. Therefore, Monta's claim that the [*8] hearing officer violated his due process rights fails.

Confidential Information

¶17 WAC 137-28-290 and -300 provide much of the administrative framework for hearing officers faced with CIs. 4 Under these provisions, if the hearing officer determines the CI would be put at risk by testifying in person, a staff member of the DOC may introduce the information in lieu of the CI's testimony. WAC 137-28-300(7). DOC must provide a summary of the confidential information, which may be contained within the infraction report, to the prisoner before the hearing. WAC 137-28-290(2)(f). A hearing officer considering confidential information must also conduct a thorough ?off the record? review without the accused prisoner present. WAC 137-28-300(7)(a).

FOOTNOTES

4 In addition to the WAC framework, federal authority shows that it handles CIs within a prison disciplinary hearing similarly. See Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987) (holding that disciplinary sanctions may be based on information from an undisclosed but reliable CI without violating due process). When a hearing officer relies on confidential information, due process requires only that the record contain (1) some factual information from [*9] which the hearing officer can reasonably conclude that the confidential information is reliable and (2) an affirmative statement indicating that safety considerations preclude disclosing the CI's identity. Zimmerlee, 831 F.2d at 186.


¶18 During the review, the staff member must identify the CI to the hearing officer as well as the circumstances under which the CI provided information. WAC 137-28-300(7)(a)-(b). The hearing officer must then independently determine whether the CI is reliable and the information credible, after considering all relevant circumstances. WAC 137-28-300(7)(b). The regulation lists examples of evidence that could establish reliability and credibility. WAC 137-28-300(7)(b)(i)-(vi). Finally, the hearing officer must also independently ?determine whether safety concerns justify nondisclosure of the source of confidential information.? WAC 137-28-300(7)(b). Although the independent review occurs off the record, the reliability, credibility, and safety determinations must be set forth in the record. WAC 137-28-300(7)(b).

¶19 The hearing officer in Monta's case met all WAC 137-28-300 requirements when he completed the written confidential information review form. The only unchecked [*10] box on the form indicated the CI had not previously given reliable information to the hearing officer. But WAC 137-28-300(7)(b) does not require such a preexisting relationship between a CI and an investigating officer. Instead, WAC 137-38-300(7)(b) lists such a relationship as an example of evidence of reliability.

¶20 Finally, Monta correctly concedes that ?the record must contain an affirmative statement from a prison official that safety considerations prevent disclosure of the informant's name.? Pet'r's Supp. Br. at 14. The hearing officer checked box 7 of the confidential information review form, which reads, ?Safety concerns justify nondisclosure of the source(s) of confidential information.? DOC Response, Attach. N. Therefore, Monta's claim that the hearing officer improperly used confidential information as the basis for the disciplinary action fails because the officer followed all required procedures. 5

FOOTNOTES

5 After argument on this matter, we ordered DOC to submit, under seal, the information considered by the hearing officer. We are satisfied that the hearing officer properly summarized any confidential information.


¶21 Monta's PRP is denied.

¶22 A majority of the panel having determined that [*11] this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Bridgewater and Armstrong, JJ., concur.