LARRY W. GRIFFIN v. LARRY CHANDLER
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RENDERED:
NOVEMBER 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001628-MR
LARRY W. GRIFFIN
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, JUDGE
CIVIL ACTION NO. 04-CI-00169
v.
LARRY CHANDLER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY, McANULTY, AND MINTON, JUDGES.
MINTON, JUDGE:
Inmate Larry Griffin appeals from the circuit
court’s order dismissing his declaratory judgment action, which
alleged that his state and federal constitutional rights were
violated during prison disciplinary proceedings.
Because our
review of the record supports the conclusion that Griffin’s
rights were not violated, we affirm the dismissal order.
I.
BACKGROUND/PROCEDURAL HISTORY.
Griffin was cited for physical action resulting in the
serious injury of another inmate, a Category VII, Item 2,
violation of Corrections Policy and Procedure (CPP) 15.2. 1
Griffin seriously injured inmate Shane Ragland by striking him
in the head at least three times with a ten-pound weight plate
on June 1, 2003.
This attack was the climax of an argument
between the two, which started over whose turn it was to use a
piece of weightlifting equipment.
After Ragland was found
injured in the weight pavilion, he received first aid at the
prison.
He was later transported by stretcher to Baptist
Hospital Northeast and then by stat flight to University
Hospital in Louisville.
staples.
His head wound was closed with surgical
The disciplinary report was based on the accounts of
inmate witnesses Ragland, James Bunch, Steve Halsey, and Roger
Whitaker; but it did not identify exactly what each of these
witnesses said about the incident.
Griffin received a copy of the disciplinary report on
June 10, 2003.
1
He pleaded not guilty.
He did not waive the
See CPP 15.2(VI)(C). This offense also encompasses physical action
resulting in the death of another inmate. It is characterized as a
“Major Violation.” See CPP 15.6(IV). “Physical Action” is defined
in relevant part as “any act of fighting, hitting, kicking, shoving,
pushing, biting, using force or other similar types of physical
contact . . . .” CPP 15.2(IV). “Serious Injury” is defined as “an
injury requiring more than basic first aid.” Id. All cited
provisions from CPP are those versions which were in effect on
June 1, 2003, and may have subsequently been amended.
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twenty-four hour notice requirement or his right to appear at
the hearing.
A legal aide was assigned to him.
the following witnesses:
He requested
Ragland, Bunch, Halsey, Whitaker, and
Recreation Director Karen Heath.
A disciplinary hearing was
conducted on June 18, 2003, by Adjustment Officer Lt. Phillip
Kute.
Griffin was found guilty of the institutional offense of
physical action resulting in the serious injury of another
inmate. 2
However, this decision was overturned by the Warden on
appeal because Griffin was not allowed to question any of the
witnesses that he had identified.
A rehearing was ordered to
give Griffin this opportunity.
Griffin’s rehearing was conducted by Adjustment
Officer Lt. Larry Voirol.
It began on August 6, 2003, but was
continued until August 13, 2003, because medical evidence to
support the element of serious injury had not been provided to
Griffin earlier.
This evidence included an incident report
prepared on June 1, 2003, by V. Prather, the nurse who treated
Ragland immediately after he was found injured in the weight
pavilion.
Also included were some photographs taken by
Lt. Prestigiacomo on June 2, 2003, of Ragland’s head wound after
it was stapled.
2
On August 9, 2003, Griffin also first received
Griffin was assigned to disciplinary segregation for 180 days and
had to forfeit two years of non-restorable good time. He was also
ordered to pay restitution in the amount of 50 percent of the
expenses for Ragland’s medical treatment once that amount was
determined.
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notice that information from confidential informants would be
considered by the adjustment officer.
from Lt. Voirol stating as follows:
He received a memorandum
“Confidential information
has been provided by Internal Affairs to the hearing [o]fficer
indicating that Larry Griffin was the inmate involved in the
physical attack on inmate Shane Ragland. . . .
More than two
(2) but less than five (5) inmates identify Griffin as the one
who hit Ragland with the 10# weight.”
When the rehearing resumed on August 13, 2003, Griffin
called inmates Ragland, Bunch, Halsey, and Whitaker as witnesses
but waived the right to call Heath.
The adjustment officer made
the following findings of fact:
Prior to hearing[,] Larry Griffin . . . was
reminded of his Miranda rights that were
read to him earlier and indicated that he
understood those rights and chose not to
make any statement during the hearing.
Griffin was reminded that failure to make a
statement during the adjustment hearing
could be used against him and Griffin chose
not to answer questions. Hearing Officer
did provide notice by cover letter of
confidential information that had been
provided that identified Griffin as the
inmate that did hit inmate Shane Ragland
with a 10 pound weight in the weight shed.
Griffin claimed not to have been given
24 hour notice to hearing held today but
this hearing was just continued. Hearing
Officer finds that Larry Griffin did cause
serious injury to inmate Shane Ragland,
[Category] VII[,] Item 2, based on
confidential information provided to the
Hearing Officer that identifies Larry
Griffin as the inmate that did hit Shane
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Ragland 3 times in the head with a ten pound
weight after having an [argument] over who
was going to use the squat weights.
Confidential information was deemed reliable
due to the fact more [than] two but less
than five inmate[s] [described] incidents
leading up to and including Griffin hitting
Ragland with the weight and information
taken from each when interviewed
[separately] describes the incident in the
same manner. Ragland described his injury
as being [enclosed] with staples rather than
stitches [which] matches picture provided by
Lt. Prestigiacomo. Griffins [sic] refusal
to make any statement during the
[investigation] and hearing was considered
when making the [decision]. . . .
Griffin was found guilty of physical action resulting
in the serious injury of another inmate.
His penalty was
180 days of disciplinary segregation, forfeiture of 2 years of
non-restorable good time, 3 and restitution for 50 percent of
Ragland’s medical bills upon receipt of them.
Griffin again
appealed to the Warden; but, this time, the Warden affirmed the
adjustment officer’s decision.
Griffin then filed a petition for declaration of
rights, seeking expungement of his disciplinary record,
restoration of his good time credits, and restoration of the
money he has paid in restitution.
Appellees’ motion to dismiss.
The circuit court granted the
This appeal followed.
Griffin
has asserted that the disciplinary proceeding violated his due
3
The amount of good time to be forfeited was also described elsewhere
in the disciplinary report form as “720 days.”
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process and equal protection rights as guaranteed by the United
States Constitution and Sections 2, 10, 11, 13, and 59 of the
Kentucky Constitution.
II.
ANALYSIS.
Before addressing the merits of his appeal, we must
address a procedural error.
Griffin’s notice of appeal named
“Larry Chandler ET,AL” [sic] as the only appellee, both in the
body and the caption.
But the captions of Griffin’s brief and
reply brief list Lts. Larry Voirol, Carol Thaman, Phillip Kute,
and Gary Prestigiacomo as appellees, in addition to Warden Larry
Chandler.
The notice of appeal does not comply with Kentucky
Rules of Civil Procedure (CR) 73.03(1), which mandates that
“[t]he notice of appeal shall specify by name all appellants and
all appellees (‘et al.’ and ‘etc.’ are not proper designation of
parties) and shall identify the judgment, order or part thereof
appealed from.”
Because Griffin is a pro se appellant and
because none of the appellees have raised this issue, we have
reviewed the merits of his appeal despite this procedural error. 4
Griffin has asserted that the disciplinary proceeding
violated his due process and equal protection rights as
guaranteed by the Fourteenth Amendment of the United States
4
See Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983) (stating
that “[p]ro se pleadings are not required to meet the standard of
those applied to legal counsel”).
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Constitution and also violated Sections 2, 10, 11, 13, and 59 of
the Kentucky Constitution.
But we need not address the alleged
violations of the Equal Protection Clause or the Kentucky
Constitution in depth for the reasons stated below.
The simple goal of the Equal Protection Clause is to
"keep[] governmental decisionmakers from treating differently
persons who are in all relevant respects alike." 5
But Griffin
has not even alleged that he was treated differently from
others, the essence of an equal protection claim.
So the
circuit court properly dismissed Griffin’s claims alleging an
equal protection claim.
Griffin has also alleged violations of Sections 2, 10,
11, 13, and 59 of the Kentucky Constitution.
Section 10
protects persons from unreasonable search and seizure.
search or seizure occurred in the instant case.
No
Section 11
addresses the rights available to an accused in a criminal
prosecution.
Prison disciplinary proceedings are civil
administrative proceedings, and they are not part of a criminal
prosecution. 6
Section 13 protects against double jeopardy and
the taking of property without just compensation.
Double
5
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
6
Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Stanford v. Parker,
949 S.W.2d 616, 617 (Ky.App. 1996).
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jeopardy does not apply to civil administrative proceedings. 7
And Griffin has not alleged that any property was taken by the
government.
Section 59 concerns limitations on the power of the
legislature to pass local or special legislation.
Clearly, this
has nothing to do with Griffin’s disciplinary proceedings.
Therefore, Griffin’s allegations that Sections 10, 13, and 59 of
the Kentucky Constitution were violated are without merit.
Section 2 of the Kentucky Constitution forbids
absolute and arbitrary power and has been construed as
guaranteeing both due process 8 and equal protection. 9
But, for
the reasons noted above, Griffin has not stated a viable equal
protection claim under either the state or federal constitution.
Griffin has asserted a violation of his federal due process
rights.
However, the guarantee against arbitrary state action
in Section 2 of the Kentucky Constitution is satisfied with
respect to judicial review of fact-finding by a prison
disciplinary committee by the same quantum of evidence as the
Due Process Clause because the same standard of review applies. 10
7
Fankhauser v. Cobb, 163 S.W.3d 389, 398 (Ky. 2005).
8
Smith v. O’Dea, 939 S.W.2d 353, 357 (Ky.App. 1997); Pritchett v.
Marshall, 375 S.W.2d 253, 258 (Ky. 1964).
9
Pritchett, 375 S.W.2d at 258.
10
O’Dea, 939 S.W.2d at 358.
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Therefore, we do not need to perform two separate due process
analyses.
A.
Due Process Rights in Prison Disciplinary Hearing.
The full range of rights to which a defendant is
entitled in a criminal prosecution does not apply to prison
disciplinary proceedings. 11
But when an inmate faces the
possible deprivation of a liberty interest (i.e., good-time
leave) 12 or property interest (i.e., restitution), he is entitled
to at least minimal due process protection.
Due process
requires that the inmate receive written notice of the claimed
violation no less than 24 hours before the hearing “in order to
inform him of the charges and to enable him to marshal the facts
and prepare a defense.” 13
The inmate is also entitled to “a
written statement of the factfinders as to the evidence relied
upon and the reasons for the disciplinary action taken.” 14
This
written statement serves both to “protect the inmate against
collateral consequences based on a misunderstanding of the
nature of the original proceeding” and to ensure that prison
11
Wolff, 418 U.S. at 556.
12
Id., 418 U.S. at 557-558.
13
Id., 418 U.S. at 564.
14
Id., 418 U.S. at 563.
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administrators will act fairly because they will be subjected to
possible scrutiny. 15
B.
Standard of Review.
In Smith v. O’Dea, we adopted the so-called “some
evidence” standard for prison disciplinary decisions 16 as set
forth in Superintendent, Massachusetts Correctional Institution,
Walpole v. Hill: 17
We hold that the requirements of due process
are satisfied if some evidence supports the
decision by the prison disciplinary board to
revoke good time credits. This standard is
met if “there was some evidence from which
the conclusion of the administrative
tribunal could be deduced. . . .”
Ascertaining whether this standard is
satisfied does not require examination of
the entire record, independent assessment of
the credibility of the witnesses, or
weighing of the evidence. Instead, the
relevant question is whether there is any
evidence in the record that could support
the conclusion reached by the disciplinary
board. 18
C.
Issues Preserved and Raised on Appeal.
Griffin’s pro se brief is rather disjointed, and he
attempts to raise many issues for the first time on appeal.
will not address the claims which were not raised before or
15
Id., 418 U.S. at 565.
16
939 S.W.2d at 358.
17
472 U.S. 445 (1985).
18
Id., 472 U.S. at 455-456 (citations omitted).
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We
decided by the circuit court. 19
This leaves five general issues
to be addressed⎯five ways in which Griffin believes his due
process rights were violated; although, sometimes he has given
alternative reasons for why he believes a certain type of error
occurred.
Griffin’s claims are as follows:
(1) he was not
provided adequate notice of the charges against him at least
twenty-four hours prior to his disciplinary hearing; (2) he was
not provided adequate notice of the confidential informants’
evidence to be used against him at least twenty-four hours
before his disciplinary hearing; (3) the adjustment officer’s
written findings of fact were inadequate; (4) the adjustment
officer was biased; and (5) the circuit court erred by adopting
the recommendations of the Appellees’ attorney without making an
independent consideration of the record.
1.
Failure to Receive Timely and Adequate Notice of Charges.
Griffin asserts that his due process rights and
CPP 15.6(VI)(C)(4)(b)(3)(c) 20 were violated because he was not
19
See Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky.
1989) (stating that “[t]he Court of Appeals is without authority to
review issues not raised in or decided by the trial court”).
20
CPP 15.6(VI)(C)(4)(b)(3)(c) sets forth the following procedures for
the prison:
Provide the inmate with a copy of all documents to
be used by the Adjustment Committee or Adjustment
Officer unless the disclosure of those documents
constitutes a threat to the safety and security of
an inmate, the public, or the institution. Documents include reports, photographs, tests, tape
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provided adequate notice of the charges against him at least
twenty-four hours prior to his hearing.
Specifically, he
complains that he was not provided the summary of the
confidential informants’ statements or the medical evidence
concerning the severity of Ragland’s injuries at least twentyfour hours before his original hearing on June 18, 2003, or
before his rehearing on August 6, 2003.
Any deficiency in
notice concerning his June 18, 2003, hearing which might have
occurred was rendered moot when the Warden ordered a rehearing. 21
As for not receiving this information before his August 6, 2003,
rehearing, this is not the relevant date because the rehearing
was continued for a week, in part, because Griffin had not
recordings or other written materials to be used as
evidence.
(1)
(2)
21
Excluding those documents prohibited from
disclosure as noted above, documents not
provided the inmate immediately following the
completion of the investigation shall be
provided not less than twenty-four (24) hours
prior to the hearing.
If the documents are not provided, a summary
of the information contained in the documents
shall be provided. The summary may be
included in and consist of the Disciplinary
Report which shall be noted on Part I of the
Disciplinary Report.
We do not express an opinion concerning whether the statements made
by the confidential informants identifying Griffin as the person who
attacked Ragland even existed as of the date of Griffin’s initial
disciplinary hearing on June 18, 2003. The Appellees have asserted
that this evidence was uncovered in the continuing investigation
after Griffin’s initial disciplinary hearing.
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received the medical evidence.
Griffin does not dispute that he
received this evidence on August 9, 2003, more than twenty-four
hours before the rehearing resumed on August 13, 2003.
There-
fore, he had sufficient notice of the evidence and time to
prepare his defense accordingly. 22
Griffin has not shown how he
was prejudiced by the fact that he received this notice during a
continuance rather than before the rehearing.
No violation of
due process or the CPP occurred.
Griffin also asserts that he was confused by the fact
that two disciplinary report forms were prepared for the same
incident.
The first report was prepared on June 9, 2003, by
Lt. Gary Prestigiacomo.
June 10, 2003.
Griffin received notice of it on
A second disciplinary report was prepared on
July 17, 2003, by Lt. Phillip Kute.
it on July 29, 2003.
Griffin received notice of
The second disciplinary report form
indicates that “[t]his report is being prepared as the result of
a rehearing ordered by Warden Larry Chandler.”
Like the first
report, it describes the events from Griffin and Ragland getting
into an argument through Griffin hitting Ragland in the head at
least three times with a ten-pound weight plate.
But the second
report is more specific in attributing statements to particular
witnesses.
The investigative portion of this disciplinary
report also differs from the original in that it has specific
22
See Wolff, 418 U.S. at 564.
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statements by inmates Bunch, Halsey, and Whitaker concerning
what they did or did not see.
Bunch stated that he never saw
Griffin and Ragland touch each other but that he witnessed them
arguing.
Halsey said all he saw was a group of people gathered
around.
Whitaker saw pushing and shoving between Ragland and an
African-American inmate, but he could not positively identify
that inmate as Griffin. 23
Griffin asserts that the first disciplinary report was
dismissed on or about July 16, 2003, by Lt. Kute, who later
ordered a reinvestigation.
He reasons that the first
disciplinary report could no longer provide him with notice of
any charges pending against him after it was dismissed.
Griffin
further asserts that Lt. Voirol improperly dismissed the second
disciplinary report form at the rehearing and, instead, relied
on the first disciplinary report form despite the fact that it
had already been dismissed.
There is no evidence in the record before this Court
that the first disciplinary report was dismissed or that a
reinvestigation was ordered.
A second disciplinary report form
was prepared, but we cannot say why.
Moreover, even if the
first disciplinary report had been dismissed before the
rehearing, as Griffin asserts, he still received adequate
notice.
23
The “essential information” that an inmate ordinarily
Griffin is African-American.
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needs to prepare a defense for a disciplinary hearing is the
knowledge of the time, place, and persons involved in each
alleged violation. 24
The factual allegations concerning the
time, place, and persons involved and the nature of the incident
are substantially the same in both disciplinary reports.
Due
process in a prison disciplinary setting requires that the
inmate receive sufficient notice of the charges against him in
order to apprise of these charges and give him sufficient time
to muster the facts and prepare a defense. 25
Regardless of which
report Griffin relied on, he had adequate notice to satisfy this
requirement.
2.
Failure to Receive Timely and Adequate Summary of
Confidential Information.
Griffin asserts that he was not provided an adequate
summary of the confidential information to be used against him
at least twenty-four hours before his rehearing.
As this Court
recognized in Gilhaus v. Wilson, the use of confidential
informants in prison disciplinary proceedings is not
inconsistent with due process where there is concern about
retaliation. 26
In fact, CPP 9.18 sets forth the procedures
24
Gilhaus v. Wilson, 734 S.W.2d 808, 809 (Ky.App. 1987).
25
Wolff, 418 U.S. at 564, 94 S.Ct. at 2979.
26
Id. at 810 (noting that “[r]evealing the names of informants could
lead to the death or serious injury of some or all of them and in
the long run would dry up the supply of informants, allowing
[disciplinary violations] to persist unchecked”).
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concerning the use of inmate informants, including confidential
informants.
While the institution can withhold information that
would identify the informants, due process requires at a minimum
that it provide the essential information the inmate needs to
prepare his defense, such as the time, place, and persons
involved in each alleged violation. 27
CPP 9.18(VI)(A)(2)
dictates the following procedure for the use of confidential
information:
“The accused inmate shall be given written notice
of the general nature of the confidential information, omitting
those details that may tend to identify the inmate who gave the
confidential information, 24 hours in advance of the Adjustment
or Classification Committee hearing.”
The summary Griffin was given on August 9, 2003, gave
an adequate description of the general allegations made against
him by the confidential informants⎯that they identified him as
the person who struck Ragland in the head with the ten-pound
weight plate⎯while omitting details that might tend to identify
the informants, such as their names and the exact number of
informants.
And, despite the objections noted earlier by
Griffin, he got this summary at least twenty-four hours before
the hearing.
So due process and CPP 9.18(IV)(A)(2) were both
satisfied.
27
Id.
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Nevertheless, Griffin argues that he did not receive
adequate notice of the confidential informants’ evidence because
it was deliberately withheld by the Appellees.
He asserts that
the Appellees had this information before his hearing and
rehearing but refused to disclose it to him in a timely fashion.
This is pure speculation unsupported by any evidence and cannot
serve as the basis for overturning the circuit court’s dismissal
of Griffin’s claims.
The Appellees assert that this information
was discovered in the course of its continuing investigation
into the incident after the Warden ordered a rehearing.
Even if
the institution did have the information earlier and refused to
reveal it, Griffin has not shown how this prejudiced him or
violated the minimal requirements of due process.
In the alternative, Griffin seems to argue that the
summary of the confidential information provided to him cannot
be adequate because it is based on a fraud.
there are no confidential informants.
He maintains that
He asserts that the
Appellees fabricated this evidence by recasting the inmate
witnesses who had already been identified by name in the initial
disciplinary report as “confidential informants.”
Because
Griffin offers no evidence to support this implausible theory,
he offers no legal basis for overturning the circuit court’s
decision.
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3.
Failure to Make Adequate Findings of Fact Supported
By Some Reliable Evidence.
Griffin asserts that the adjustment officer’s decision
is not supported by some reliable evidence that he failed to
make adequate findings of fact.
First, he asserts the
adjustment officer impermissibly relied upon the confidential
informants’ evidence without making an independent determination
that the informants were reliable.
In Gilhaus, this Court noted
that no particular formula is required by the factfinder in
making the determination that the confidential informants are
trustworthy. 28
“The verification procedure need not be
comprehensive[;] the committee need only some reference to
verification.” 29
In this instance, the adjustment officer noted
that the information was deemed reliable because of the fact
that more than two and less than five informants identified
Griffin as the person who struck Ragland with the ten-pound
weight plate when interviewed separately.
This is sufficient to
verify the reliability of the confidential informants’
statements.
Griffin also maintains that there was no competent
evidence in the record to show that Ragland was seriously
injured, which is an element of the offense.
“Serious Injury”
28
734 S.W.2d at 810.
29
Id. (holding that the adjustment committee sufficiently verified the
confidential informants’ credibility by noting that the informant or
informants passed polygraph examinations).
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is defined by CPP 15.2(IV) as “an injury requiring more than
basic first aid.”
The adjustment officer found that Ragland
received surgical staples to close his head wound.
He based
this on Ragland’s testimony and the photographs taken by
Lt. Prestigiacomo of Ragland’s head wound after it was stapled.
Surgical staples are more than basic first aid.
Griffin asserts
that Ragland was not competent to testify about the surgical
staples because he is not a doctor.
But he does not need to be
an expert witness to testify as to whether a medical procedure
was performed upon him.
His testimony and Lt. Prestigiacomo’s
photographs are more than the “some evidence” needed to
establish that Ragland received a serious injury.
Griffin claims that the adjustment officer did not
provide a written statement as to the evidence relied on and the
reasons for the disciplinary decision as required by the
factfinder in Wolff v. McDonnell. 30
He asserts that as in
King v. Wells, 31 the adjustment officer merely incorporated the
reporting officer’s account. 32
However, the instant case is
clearly distinguishable from King.
In King, the hearing officer
based the decision on the staff investigator’s report without
explaining in any detail what aspect of the report was relied
30
418 U.S. at 564.
31
760 F.2d 89 (6th Cir. 1985).
32
Id. at 93-94.
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upon. 33
The fact that the staff investigator’s report was a
compilation of the statements of ten different witnesses, all of
whom may not have agreed, made it impossible to understand the
basis of the hearing officer’s decision, which eliminated the
possibility of any meaningful review. 34
here.
That is not the case
The adjustment officer made detailed findings of fact
and, specifically, pointed out that he was basing his decision
on the following:
Griffin’s failure to testify during the
investigation and hearing; the statements by three or four
confidential informants, each of whom separately identified
Griffin as the person who struck Ragland; Ragland’s testimony
about receiving surgical staples; and Lt. Prestigiacomo’s
photographs of Ragland’s head wound after it was closed with
surgical staples.
Even if no one specifically identified Griffin as the
person who hit Ragland, there would still be some evidence to
support the adjustment officer’s finding based on the
circumstantial evidence contained in the disciplinary report.
The report states that immediately before Ragland was struck
with a weight plate while in the weight pavilion, they had
argued over the use of weightlifting equipment.
In
Superintendent, Massachusetts Correctional Institution,
33
Id.
34
Id.
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Walpole v. Hill, 35 the United States Supreme Court held that
similar circumstantial evidence was enough to uphold a
disciplinary decision finding an inmate guilty of beating
another inmate. 36
In that instance, the only evidence was the
inmate who was the subject of the disciplinary hearing was one
of three inmates who had been seen running away from an enclosed
area where a commotion had been heard and which was deserted,
except for the inmate who had been beaten. 37
4.
Failure to Receive an Impartial Adjudicator.
Griffin asserts that his due process rights were
violated because he did not receive an impartial administrative
adjudicator.
He asserts that Lt. Voirol, the Adjustment Officer
presiding over the rehearing, was biased and should have
disqualified himself under CPP 15.6(VI)(A)(4)(a), which states
as follows:
“A committee member, Adjustment Officer[,] or Unit
Hearing Officer shall be disqualified in every case in which he
has:
1) filed the complaint or witnessed the incident;
2) participated as an investigating officer; 3) been assigned
the subsequent review of the decision.”
Griffin asserts that
Lt. Voirol participated as an investigating officer by
continuing the hearing from August 6, 2003, until August 13,
35
472 U.S. 445 (1985).
36
Id., 472 U.S. at 456-457.
37
Id.
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2003, in order to allow investigators time to gather medical
evidence about the extent of Ragland’s injuries.
An allegation of bias on the part of a factfinder
must be supported by documentation and evidence. 38
Here, the
record does not support that anything improper occurred.
On
Part II of the disciplinary report form, the adjustment officer
gave the following reason for the one-week continuance:
“Medical information to support charge of serious injury to
another inmate not provided to Griffin prior to hearing.”
By
granting a continuance because Griffin had not received the
medical evidence before the commencement of the hearing on
August 6, 2003, the adjustment officer did not act as
investigator.
Nor does the decision to grant such a continuance
demonstrate any animus or bias on the part of the adjustment
officer toward Griffin.
Indeed, denying a continuance under
those circumstances might have violated Griffin’s due process
rights.
We are unconvinced that Griffin was denied an impartial
adjustment officer.
5.
Circuit Court’s Failure to Make an Independent
Determination from the Record.
Griffin also asserts that the circuit court violated
his due process rights by not making an independent
determination from the record but instead adopting the
38
Foster v. Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961).
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recommendations of the respondent’s attorney.
He asserts that
if the circuit court had reviewed the record, it would have
ruled in Griffin’s favor on his declaration.
Therefore, since
the circuit court did not rule in his favor, it must not have
reviewed the record.
obvious.
The fault in this circular reasoning is
Moreover, Griffin’s argument is based on a misunder-
standing of the standard of judicial review for a disciplinary
proceeding.
As noted above, the reviewing court’s role is to
determine whether there was some evidence to support the
administrative tribunal’s decision. 39
Making this determination
“does not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of the
evidence.” 40
Not only was it proper for the circuit court to
rely on the administrative record in rendering its decision, it
was also necessary. 41
III.
CONCLUSION.
The administrative record reveals that Griffin was
afforded all the due process protections to which he was
entitled in a prison disciplinary action.
Finding that no
violations of his state or federal constitutional rights
39
Hill, 472 U.S. at 455-456.
40
Id., 472 U.S. at 455 (emphasis added).
41
O’Dea, 939 S.W.2d at 356.
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occurred, we affirm the Oldham Circuit Court’s order dismissing
his declaratory judgment action.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry Wayne Griffin, Pro se
Central City, Kentucky
Rebecca Baylous
Frankfort, Kentucky
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