ARNOLD (ODIS) VS. RAKES (CHRISTOPHER) AND CHAPMAN (ARVIL)
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RENDERED: FEBRUARY 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000797-MR
ODIS ARNOLD
v.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DAN KELLY, JUDGE
ACTION NO. 09-CI-00315
CHRISTOPHER RAKES
AND
ARVIL CHAPMAN
APPELLEES
OPINION AND ORDER
AFFIRMING
GRANTING APPELLEES’ MOTION TO STRIKE
EXHIBITS AND ARGUMENTS NOT SUPPORTED BY THE RECORD
** ** ** ** **
BEFORE: CLAYTON, COMBS, AND WINE, JUDGES.
COMBS, JUDGE:
Odis Arnold, an inmate at the Marion Adjustment Center,
appeals from an order of the Marion Circuit Court dismissing his petition for a
declaration of rights. Arnold filed the petition at the conclusion of a prison
disciplinary proceeding. After reviewing the entirety of the record before us, the
arguments of the parties, and the applicable law, we affirm. We also grant the
appellees’ motion to strike a specific exhibit and any arguments not supported by
the record.
On May 12, 2009, inmate James Young was severely beaten by a fellow
inmate. He suffered an orbital fracture, a mandibular fracture, and a zygomatic
arch fracture. Young was transported outside the prison medical facility to a local
hospital in Marion County and then on to University of Louisville Hospital for
surgery. An investigation followed.
Lola Cox, an investigator working with Corrections Officer Lieutenant
Hacker, prepared an incident report entitled “Disciplinary Report Form-Write-up
and Investigation.” This report included Cox’s conclusion that Arnold had
assaulted Young near the institution’s weight-lifting equipment. On May 18, 2009,
Arnold was charged by the institution with committing a Category VII, Item 2
violation of Kentucky Corrections Policies and Procedures: physical action
resulting in the death or serious injury of another inmate.
A disciplinary hearing was held before the chairman of the institution’s
adjustment committee on May 29, 2009. The evidence presented during the
hearing consisted of Arnold’s denial of the charge, written statements prepared by
eleven inmate-witnesses requested by Arnold, a statement provided by Investigator
Cox, a report that summarized statements provided by nine or ten confidential
informants, and a detailed confidential report that included the name of the each of
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the informants.1 Evidence from a surveillance camera was requested by Arnold,
but it was not utilized “due to the position and performance of the camera.”
Disciplinary Report Form Part II -- Hearing/Appeal at 1.
After considering the evidence, the adjustment committee chairman decided
that Arnold was guilty of the charged offense. He was assigned to disciplinary
segregation for a period of 180 days and was required to forfeit 730 days of goodtime credit. On appeal, Warden Arvil Chapman concluded that Arnold had been
provided due process, and he concurred with the Chairman’s adjudication.
Arnold sought judicial review in the Marion Circuit Court under the
provisions of the Declaratory Judgment Act. Kentucky Revised Statutes (KRS)
418.040 – 418.090. He alleged that prison officials had violated his constitutional
rights by refusing to compel Young’s participation in the hearing and by failing to
insure the reliability of the confidential informants. After reviewing the record
before it, the circuit court rejected Arnold’s arguments and dismissed the petition.
The court noted that “[t]hese confidential informants were familiar to Investigator
Cox and the Adjustment Chairman as they had been used in the past and had been
found to be reliable. Their information corresponded to the injuries sustained by
Young and the area of the facility in which the incident occurred.” Order at 2. The
court concluded that the decision of the chairman of the adjustment committee was
1
Of the eleven inmate-witnesses requested by Arnold, one inmate indicated that he had not seen
anything involving the incident; another inmate indicated that he was not there; two inmates
indicated in their written statements that they did not want to give a statement, refusing to
elaborate. The remaining inmates provided lengthy statements but admitted that they had not
witnessed the incident. Some of the statements gave Arnold conflicting alibis.
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supported by sufficient evidence and that Arnold had not been denied due process.
This appeal followed.
On appeal, Arnold argues that the circuit court erred by failing to grant his
petition because the decision to exclude Young’s testimony violated his
constitutional rights. Arnold also contends that the prison’s investigation was
inadequate since it failed to meet CPP standards. Finally, he contends that the
reliability of the confidential informants was not properly established.
The due process requirements for prison disciplinary proceedings were
established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935
(1974), where the Court held that prisoners possess a liberty interest in their
statutorily provided good-time credits. While the government may not deprive a
prisoner of those credits without due process, “[p]rison disciplinary proceedings. . .
take place in a closed, tightly controlled environment peopled by those who have
chosen to violate the criminal law and who have been lawfully incarcerated for
doing so.” Id. at 562. Consequently, “the full panoply of rights due a defendant
[in a criminal prosecution] does not apply.” Id. at 556. Instead, an inmate is
entitled to receive: advance written notice of the disciplinary charges against him;
an opportunity to appear before a sufficiently impartial hearing body and to call
witnesses and to present documentary evidence – provided that to do so will not
jeopardize institutional safety or correctional goals; and a written statement by the
fact-finder detailing the evidence relied upon and the reasons for the disciplinary
action taken. Wolff, supra.
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In his first argument, Arnold challenges the decision not to permit evidence
from Young. Arnold contends that the chairman abused his discretion and
deprived him of due process of law. We disagree.
Inmates do not have an unfettered right to call witnesses from the prison
population because of the sound institutional policy interest in reducing the risks of
reprisal and the accused’s access to other inmates. Wolff 418 U.S. at 566.
Many prison officials, on the spot and with the responsibility for the
safety of inmates and staff, are reluctant to extend the unqualified
right to call witnesses… they must have the necessary discretion
without being subject to unduly crippling constitutional impediments.
Id. at 567. (Emphasis added). Prison officials may also exclude witnesses because
of irrelevance, lack of necessity, or the hazards presented by a particular set of
circumstances. Wolff 418 U.S. at 566.
In this case, the chairman of the adjustment committee presented at the
hearing a detailed record underlying the committee’s decision to deny Arnold’s
request to call Young as a witness. The chairman determined that the seriousness
of the incident – along with safety and security concerns – precluded Young’s
participation in the hearing.
Young had been severely beaten less than three
weeks before the hearing. At least nine confidential informants declared that
Arnold had beaten Young so savagely that he was rendered unable to defend
himself. Additionally, the chairman knew that Arnold had been involved in three
other physical assaults. Finally, Arnold was permitted to present the evidence of
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the remaining inmate-witnesses that he requested. The committee chairman did
not abuse his discretion in this matter. Arnold was not deprived of due process.
Next, Arnold contends that the investigation of the matter was
conducted in an “in different” (sic) and “highly suspicious” manner. Appellant’s
Brief at 4. He alleges that the investigator assigned to the incident refused to
interview any of his inmate-witnesses. He also asserts that the investigator failed
to assess the credibility of the several confidential informants involved in the case
and failed to transmit to him a proper summary of the confidential report submitted
to the adjustment committee as required by the provisions of the CPP. Arnold
contends that the cumulative effective of these errors meant that he was “precluded
from mounting a defense.” Appellant’s brief at 5.
The record before us does not support Arnold’s allegations regarding the
investigator’s alleged failures or omissions. Written statements were collected
from eleven inmate-witnesses requested by Arnold. Furthermore, Investigator Cox
specifically noted in her report that the reliability of the confidential informants
had been verified. During the administrative hearing, Arnold admitted that he had
received copies of all the written materials to which he was entitled. He objects to
the investigator’s failure to indicate on the disciplinary report that the report
comprised the “summary” required by relevant provisions of the CPP. However,
we cannot conclude that this editorial omission rose to the level of a denial of due
process.
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In his brief, Arnold asks this Court to take judicial notice of the institution’s
“refusal” to submit the entirety of the confidential report to the Marion Circuit
Court for inspection. He asks that we “not condone such behavior from a private
prison” and suggests that “their (sic) refusal to do so should alert this Court to their
(sic) unorthodox practices in matters involving confidential informants.”
Appellant’s brief at 7.
The responsibility for obtaining the administrative record and submitting it
to the trial court lies with the inmate seeking relief. Even confidential records
which were not made available to the inmate during the disciplinary proceedings
are maintained and available for “purposes of later administrative or judicial
review.” CPP 9.18(VI)(A)(8). These confidential documents can be presented to
the trial court in camera to assure their continued confidentiality, but the inmate is
responsible for properly requesting them. If Arnold believed that a review of the
confidential report relied upon in this case was critical to his appeal, he bore the
burden of seeking out and submitting the entire administrative record. Arnold’s
failure to do so cannot be characterized as a failing of the prison or of the trial
court that reviewed the matter in the first instance.2
Finally, Arnold contends that his right to due process was violated
because the chairman of the adjustment committee failed to make an independent
assessment of the reliability of the confidential informants before relying on their
2
Arnold also insinuates that Investigator Cox ignored the surveillance camera footage in an
attempt to avoid plainly exculpatory evidence. However, we note that the chairman of the
adjustment committee determined that the footage was not useful due to the position and
performance of the camera itself.
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statements against him. He argues that the chairman merely accepted the word of
Investigator Cox and presumed that the statements of the confidential informants
could be trusted.
Wolff did not address the issue of an unsworn, hearsay statement of a
confidential informant; i.e., whether there must be some indication of the reliability
of the informant before his statement may be considered as evidence against an
inmate. However, in Hensley v. Wilson, 850 F.2d 269, 276-77 (1988), the United
States Court of Appeals for the Sixth Circuit established some ground rules
regarding the use of confidential informants’ statements in prison disciplinary
matters:
In cases in which prisoner misconduct is found upon evidence
consisting entirely, or even substantially, of the statement of an
investigating officer that he has been told by confidential informants
that the misconduct occurred, and that the investigator believes the
informant to be reliable, there must be some independent
determination by the committee of the informant’s reliability. In such
cases, unless the committee makes an independent determination
about what the facts of the alleged misconduct are by deciding,
minimally, that the hearsay information has been supplied by a
reliable informant, it is merely recording the findings made by the
investigation officer who has made a determination about the
informant’s reliability, without making any determination for itself
about the informant’s reliability or even the basis for the investigator’s
opinion that the information is reliable. To proceed in that fashion is
not fact finding. It is recordkeeping.
In its best light, such a procedure is an unwarranted delegation to the
investigator of a key aspect of the committee’s adjudicative function;
in its worst, it suggests a willful reluctance to probe the possibly
flawed foundation of the charges against inmates. Reliance upon an
investigating officer’s statement that an informant is reliable is not
necessarily a fatal procedural flaw, but if the committee does not
discover, and assess, the investigating officer’s basis for concluding
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that the informant is reliable, it cannot be said that the committee has
made reasoned choices about the truth of the information provided to
it, as minimum due process requires it to do. While the Due Process
Clause does not, in prison discipline cases, require the appearance of
the confidential informant before the adjudicating committee, or that
the informant’s identity be disclosed to the accused, or even to the
disciplinary committee members, it requires at the very least that the
committee have some evidentiary basis, even hearsay, upon which to
determine for itself that the informant’s story is probably credible.
The Hensley Court rejected the proposition that a prison adjustment
committee must make written detailed findings regarding “why or to what extent
each witness was believed or disbelieved.” Id. at 278. Instead, it held that the
adjustment committee or officer is required to make a contemporaneous record of
the evidence relied upon. If some evidence is withheld from the inmate in order to
protect the identity of a confidential informant, “more detailed evidence, sufficient
to meet constitutional standards, must be placed in a nonpublic record.” Id. at 283.
However, the written statement to the inmate need only contain “some reference to
verification” of the reliability of the confidential informant’s statement. Gilhaus v.
Wilson, 734 S.W.2d 808, 810, citing Goble v. Wilson, 577 F.Supp. 219, 220
(W.D.Ky.1983).
In this case, the chairman of the adjustment committee relied primarily on
information provided by confidential informants. Investigator Cox reported that
Arnold’s part in the incident had been determined from information obtained from
confidential informants “who have been deemed reliable.” She also indicated that
a complete and detailed confidential report had been submitted to the adjustment
committee chairperson. During the hearing, the chairman stated that he had
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reviewed the contents of the confidential report and confirmed that the information
contained therein was derived from several confidential sources. The chairman
indicated that he was familiar with the sources and regarded them as reliable based
on their assistance in other matters. In his written report, the chairman included his
findings that the evidence provided by confidential informants had been used to
confirm Investigator Cox’s conclusions and that the informants had been deemed
reliable.
We are persuaded that the chairman of the adjustment committee undertook
a bona fide evaluation of the credibility and reliability of the confidential
informants that were identified to him in this matter. Despite Arnold’s assertions
to the contrary, the chairman’s independent assessment of the informants and his
written conclusion that they were reliable comported with the requirements of
Hensley. Arnold’s rights were not violated.
We affirm the order of the Marion Circuit Court.
ALL CONCUR.
ENTERED: February 11, 2011
/s/ Sara W. Combs
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Odis Arnold, pro se
Burgin, Kentucky
Micah I. Shirts
Elizabethtown, Kentucky
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