CREAMER v. STATE/RYAN

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE MATTHEW RONALD CREAMER, ) ) Plaintiff/Appellant, ) ) v. ) ) STATE OF ARIZONA; CHARLES L. ) RYAN; ARIZONA DEPARTMENT OF ) CORRECTIONS, ) ) Defendants/Appellees. ) ) DIVISION ONE FILED: 11/27/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 11-0510 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. LC2011-000162-001 The Honorable John R. Hannah, Jr., Judge VACATED AND REMANDED Matthew Ronald Creamer In Propria Persona Tucson Thomas Horne, Attorney General Phoenix By Katherine E. Watanabe, Assistant Attorney General Attorneys for Defendants/Appellees H A L L, Judge ¶1 Matthew Ronald denying special-action Arizona Department of Creamer relief (Creamer) against Corrections, and the appeals State Director of an order Arizona, Charles Ryan (collectively, DOC). For the reasons stated below, we vacate the superior court order and remand. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Creamer claims his due-process rights were violated by the manner against in which him. DOC During conducted an a intake disciplinary property proceeding inventory, DOC discovered several items of contraband in Creamer s property. He was Pursuant placed to on DOC report for policy, a Class prisoners B felony charged violation. with Class B violations are to be served with a written copy of the charge no later than forty-eight hours before the disciplinary hearing. DOC Department Order 803 § 803.06 (1.3.4). notified of Although Creamer s copy the of the charge and signature disciplinary signed the disciplinary acknowledged charge, it Creamer was orally that is he report. received undisputed that a the disciplinary coordinator did not provide Creamer with a written copy of the charge because there was no copy machine available at the time Creamer signed the notice. The disciplinary coordinator had a practice of making copies of all charges each day at the end of her shift and relying on other officers to distribute these copies to the prisoners. that Creamer did not receive his own DOC does not dispute written disciplinary charge at any time before the hearing. 2 copy of the ¶3 Creamer s disciplinary hearing was held on October 8, 2010. Creamer provided two witness statements and, apparently, admitted to possessing some of the contraband. officer found Creamer guilty. The hearing As with the disciplinary charge, Creamer signed the Result of Disciplinary Hearing form, but did not receive a copy at that time due to the lack of a copy machine. DOC policy prisoner that of its the disciplinary officer inform orally. decision in hearing See DOC Department Order 803 § 803.07 (1.13.2). ¶4 the requires writing and Creamer did not have written copies of the charges or the hearing results when he submitted his level one appeal to the deputy (1.2.4) warden. (authorizing See DOC level Department one appeal Order to 803 deputy § 803.09 warden). Creamer s appeal raised the failure to provide him a written copy of the charges and hearing decision was upheld on appeal. result. The disciplinary Creamer obtained written copies of the charges and the hearing results after the first appeal was denied. Creamer then submitted a level two appeal, raising the same issues, including the lack of written copies. See DOC Department Order 803 § 803.09 (1.2.5) (authorizing level two appeal to director). His second appeal was also denied. As a result, Creamer was placed on Parole Class III status for sixty 3 days, given thirty days extra duty, and loss of privileges for thirty days. ¶5 Creamer filed a special-action petition in superior court alleging the disciplinary proceedings violated his dueprocess rights. DOC moved to dismiss the special action. The superior court accepted special-action jurisdiction, but denied relief. We have jurisdiction pursuant to Arizona Revised special-action relief, Statutes (A.R.S.) section 12-2101(A)(1) (2012).1 DISCUSSION ¶6 The superior court denied finding that the disciplinary process was not so unfair as to warrant relief. When the superior court accepts special-action jurisdiction and rules on the merits, this court reviews to determine if the superior granting or denying relief. court abused discretion in Files v. Bernal (State), 200 Ariz. 64, 65, ¶ 2, 22 P.3d 57, 58 (App. 2001). 1 its Creamer contends that Although Creamer filed a notice of appeal from an unsigned minute entry order, the superior court subsequently filed a signed judgment in favor of DOC. We may, therefore, properly exercise jurisdiction over the appeal. See Craig v. Craig, 227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011) (recognizing limited exception to the final judgment rule that allows a notice of appeal to be filed after the superior court has made its final decision, but before it has entered a formal judgment, if no decision of the court could change and the only remaining task is merely ministerial. (Emphasis in original) (citations omitted)). 4 DOC s failure to follow its own regulations violated due process and justifies relief. ¶7 If a disciplinary proceeding may result in the loss of a prisoner s good time credits, due process requires that the prisoner receive (1) twenty-four hours advance written notice of the violation charged; (2) an opportunity to be heard, including the ability to call witnesses, unless doing so would unduly jeopardize institutional safety or correctional goals; and (3) a written statement by the fact finder detailing the evidence relied on and the reasons for the disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). In accordance with these due-process requirements, DOC policy requires that a prisoner receive a written copy of the disciplinary charge no later than forty-eight hours before the disciplinary hearing. See DOC Department Order 803 § 803.06 (1.3.4). More specifically, written DOC policy states that [t]he Disciplinary Coordinator shall . . . [s]erve the charge in writing to the inmate no later than 48 hours before the hearing. ¶8 Id. DOC concedes that although Creamer had the opportunity to review the written notice of the disciplinary charge, he was not served with a written copy of the disciplinary charge prior to the hearing (i.e., did not receive a timely written copy of the charge prior to the hearing). 5 Accordingly, DOC properly does not attempt to argue that Creamer charge as required by DOC s regulations. was served with the Creamer contends that because he never received a written copy of the disciplinary report he was unable to properly marshal the facts and present a defense at his hearing or prepare his appeal. See Wolff, 418 U.S. at 564. ¶9 Given admitted lack DOC s of own service service in a civil case. regulations of the requiring charge is service, akin to lack the of In that context, [i]f a defendant has not been properly served, and the defect in service has not been waived, any resulting judgment is void and must be vacated on request. Ariz. Real Estate Inv., Inc. v. Schrader, 226 Ariz. 128, 129 ¶ 6, 244 P.3d 565, 567 (App. 2010). State admits it did not serve Creamer with As applied, the the charge in writing; Creamer consistently objected to the lack of service and the State Accordingly, the has not argued resulting that disciplinary he waived order and the issue. appeal was void for lack of jurisdiction and, given Creamer s request, must be vacated. Id. This result is consistent with the requirements of DOC regulations and due process. ¶10 Merely obtaining Creamer s signature on the written notice, without providing him a written copy in advance did not satisfy the due-process requirements set forth in Wolff or DOC s 6 own regulations. Due process requires advance written notice of the claimed violation in order to clarify the charges and allow the prisoner to prepare a defense. Wolff, 418 U.S. at 564. Advance written notice of the charges also prevents any change in the charges between the time the prisoner is orally notified and the hearing. Id. A prisoner is denied a fair chance to prepare a defense if the written charges are quickly taken away from the [prisoner] and he is forced to prepare his defenses based largely on his memory of the factual details alleged and regulatory provisions invoked. Benitez v. Wolff, 985 F.2d 662, 665 (2d Cir. 1993); see also In re Bobby F., 970 N.E.2d 25, 3233 (Ill. App. 2012) ( Written notice takes on great importance because it review the provides the information respondent at a time with and the in a opportunity manner of to his choosing. ). ¶11 We also reject DOC s attempt to place the onus of obtaining a written notice on Creamer. Due process places this obligation squarely on DOC, not the prisoner. See generally Wolff, 418 U.S. at 564. ¶12 DOC argues that it complied with due-process requirements by placing a copy of the disciplinary report into the prison mail system. DOC argues that placing the written notice mail into the prison system 7 is analogous to civil litigants assuming that the other party has received documents served by mail unless they analogy is unpersuasive. the requirements of are notified otherwise. This As noted above, and particularly given DOC regulations, the written notice of disciplinary charges is similar to a summons and complaint which require personal service absent waiver. Civil Procedure 4.1. to effect service See Arizona Rules of DOC s reliance on the prison mail system (without corresponding proof of actual receipt) is insufficient to satisfy the dictates of due process in prison disciplinary cases. Cf. Endischee v. Endischee, 141 Ariz. 77, 79, 685 P.2d 142, 144 (App. 1984) ( Proper service of process is essential for the court to obtain jurisdiction over a party[.] ). ¶13 DOC argues that its failure to provide Creamer with the required pre-hearing due process is excused because Creamer admitted to possessing some of the contraband, which, constitutes some evidence supporting the disciplinary action. DOC misunderstands the requirements of due process. In addition to the requirements set forth in Wolff and DOC regulations, the disciplinary decision must be supported by some evidence in the record to comport with due process. U.S. 641, 648 (1997). Edwards v. Balisok, 520 It is not sufficient that the decision 8 was supported by some evidence; Creamer was entitled to the protections detailed in Wolff and DOC regulations. ¶14 Finally, DOC argues that A.R.S. § 31-201.01(L) (Supp. 2011) bars Creamer s claim. claim. him. Creamer, however, did not bring a Creamer is merely defending DOC s claim brought against We therefore conclude there is no merit to this argument. ¶15 We vacate the order denying special-action relief and remand for a new disciplinary proceeding that comports with due process. hearing Because was we without conclude that jurisdiction and the initial violated disciplinary Creamer s due- process rights, we need not decide whether DOC s failure to provide a written copy of the hearing report prior to Creamer s level one appeal violated due process. CONCLUSION ¶16 remand We vacate the order denying special-action relief and for a new disciplinary proceeding following proper service on Creamer of the charge in writing no later than fortyeight hours before a new disciplinary hearing. _/s/__________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/______________________ PETER B. SWANN, Judge _/s/___________________________ SAMUEL A. THUMMA, Judge 9

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