THOMAS (ONTARIO) VS. HANEY (STEVE), ET AL.
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RENDERED: JULY 8, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001026-MR
ONTARIO THOMAS
v.
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL III, JUDGE
ACTION NO. 09-CI-00186
STEVE HANEY;
WALTER GRIBBINS;
BRIAN TAYLOR; DON DRURY;
AND CARL GEFFUL
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CAPERTON, MOORE, AND STUMBO, JUDGES.
MOORE, JUDGE: Ontario Thomas, proceeding pro se, appeals the Lyon Circuit
Court’s order dismissing his Petition for Declaration of Rights. After a careful
review of the record, we reverse because there is no evidence supporting the
disciplinary charge against Thomas. We accordingly reverse and remand for
further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts as found by the circuit court are as follows:
On or about April 17, 2009, Inmate Jeffery Elam was
assaulted while housed at the North Point Training
Center [NTC]. After two vacated Adjustment Committee
decisions and a third hearing, [Thomas] was ultimately
charged with and convicted of a Category 7, Item 2
institutional infraction, “physical action resulting in death
or injury of an inmate.” As a result of this decision,
[Thomas] received one hundred eighty (180) days of
disciplinary segregation, forfeited two (2) years of nonrestorable good time credit, and was ordered to pay
fifteen hundred ($1,500) in restitution for medical
expenses.
By way of relief, [Thomas] asks this Court to remand this
case by vacating the NTC Adjustment Committee
findings, restore good-time credits, and restore what has
been forfeited as a result of this action.
As noted by the Respondents in their motion to dismiss
and supported by additional materials provided by
[Thomas] in his response, the underlying action that is
the basis of this petition, was rewritten in accordance
with the Kentucky Corrections Policies and Procedures
(CPP 15.6(II)(F)(8)). This particular CPP grants the
Warden the authority to order a disciplinary report
vacated upon justification and may allow it to be reinvestigated or reheard, or both. Further, it is prudent at
this juncture to note that Black’s Law Dictionary defines
vacate as “to render an act as void.”
Since the basis of this petition, the underlying
Adjustment Committee decision, was vacated and reinvestigated or reheard, [Thomas] received the relief he
sought in his initial Petition. However, since that time
and as noted above and presented in [Thomas’s]
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subsequent motions, [Thomas] has been re-tried and
convicted of the same institutional infraction resulting in
the same penalties.
Thus, citing “judicial efficiency and economy” as its reasons, the circuit court
decided to address the issues presented in the case.
The court found that “a review of the record shows that the
Adjustment Committee did in fact read the confidential information gathered by
the investigating officer and believed it to be true in accordance to” CPP 9.18. The
court noted that the “confidential information is not part of the record as revealing
this information creates the possibility of retaliatory action against the confidential
informants.” Ultimately, the court granted the motion to dismiss Thomas’s
Petition for Declaration of Rights after finding that “the overall record shows the
Kentucky Department of Corrections acted within the scope of the Corrections
Policies and Procedures Manual and provided limited due process for [Thomas].”
Thomas now appeals, contending that: (a) his due process rights were
violated when the Adjustment Committee made no determination concerning the
reliability and credibility of the confidential informant(s), and when the Committee
failed to explain its decision and factual findings; (b) his due process rights were
violated when he was ordered to pay $1,500 in restitution, despite there being no
verification in the record to substantiate this amount; and (c) his due process rights
were violated when the Adjustment Committee “continued to try and convict him
of the same charged incident report twice more while such was pending in court
after the wardens’ review and denial.”
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II. STANDARD OF REVIEW
A motion to dismiss a petition for declaration of rights arising out of a prison
disciplinary proceeding should be treated as a motion for summary judgment. See
Smith v. O’Dea, 939 S.W.2d 353, 355 n.1 (Ky. App. 1997). “The standard of
review on appeal of a summary judgment is whether the trial court correctly found
that there were no genuine issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779,
781 (Ky. App. 1996). “The record must be viewed in a light most favorable to the
party opposing the motion for summary judgment and all doubts are to be resolved
in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., 807 S.W.2d 476, 480 (Ky.
1991). “Even though a trial court may believe the party opposing the motion may
not succeed at trial, it should not render a summary judgment if there is any issue
of material fact.” Id. Further, “the movant must convince the court, by the
evidence of record, of the nonexistence of an issue of material fact.” Id. at 482.
Where, as here, principles of administrative law and
appellate procedure bear upon the court’s decision, the
usual summary judgment analysis must be qualified. The
problem is to reconcile the requirement under the general
summary judgment standard to view as favorably to the
non-moving party as is reasonably possible the facts and
any inferences drawn therefrom, with a reviewing court’s
duty to acknowledge an agency’s discretionary authority,
its expertise, and its superior access to evidence. In these
circumstances we believe summary judgment for the
Corrections Department is proper if and only if the
inmate’s petition and any supporting materials, construed
in light of the entire agency record (including, if
submitted, administrators’ affidavits describing the
context of their acts or decisions), does not raise specific,
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genuine issues of material fact sufficient to overcome the
presumption of agency propriety, and the Department is
entitled to judgment as a matter of law. The court must
be sensitive to the possibility of prison abuses and not
dismiss legitimate petitions merely because of unskilled
presentations. Jackson v. Cain, 864 F.2d 1235 (5th
Cir.1989). However, it must also be free to respond
expeditiously to meritless petitions. By requiring
inmates to plead with a fairly high degree of factual
specificity and by reading their allegations in light of the
full agency record, courts will be better able to perform
both aspects of this task.
Smith, 939 S.W.2d at 356.
III. ANALYSIS
Thomas first contends that his due process rights were violated because there
was no determination regarding the reliability and credibility of the confidential
informant(s) upon which the Adjustment Committee based its decision, and
because the Committee did not explain its decision or its factual findings.
The U.S. Supreme Court explained the evidentiary threshold in prison
disciplinary proceedings as follows:
Prison disciplinary proceedings take place in a highly
charged atmosphere, and prison administrators must
often act swiftly on the basis of evidence that might be
insufficient in less exigent circumstances. . . . The
fundamental fairness guaranteed by the Due Process
Clause does not require courts to set aside decisions of
prison administrators that have some basis in fact.
Revocation of good time credits is not comparable to a
criminal conviction . . . and neither the amount of
evidence necessary to support such a conviction . . . nor
any other standard greater than some evidence applies in
this context.
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Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S.
445, 456, 105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356 (1985). Consequently, prison
disciplinary proceedings are subject to a lesser standard of due process than a
criminal case because “prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due to a defendant in such proceedings
does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41
L. Ed. 2d 935 (1974).
However, an inmate involved in prison disciplinary proceedings does retain
certain protected rights. The U.S. Supreme Court recognized this in holding:
[w]here a prison disciplinary hearing may result in
the loss of good time credits . . . the inmate must receive:
(1) advance written notice of the disciplinary charges; (2)
an opportunity, when consistent with institutional safety
and correctional goals, to call witnesses and present
documentary evidence in his defense; and (3) a written
statement by the factfinder of the evidence relied on and
the reasons for the disciplinary action. . . . [T]he
provision for a written record helps to assure that
administrators, faced with possible scrutiny by state
officials and the public, and perhaps even the courts,
where fundamental human rights may have been
abridged, will act fairly. . . . We now hold that
revocation of good time does not comport with the
minimum requirements of procedural due process . . .
unless the findings of the prison disciplinary board are
supported by some evidence in the record.
Walpole, 472 U.S. 445 at 454, 105 S. Ct. 2768 at 2773 (internal quotation marks
omitted and emphasis added). Kentucky has similarly held that this “some
evidence” standard of judicial review of prison disciplinary proceedings does not
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offend Section 2 of the Kentucky Constitution. See Smith, 939 S.W.2d at 358;
Webb v. Sharp, 223 S.W.3d 113, 118 (Ky. 2007).
This Court must decide what qualifies as “some evidence” in relation to
confidential informants in the framework of prison disciplinary proceedings. The
U.S. Supreme Court set out broad basic requirements for “some evidence” when it
held:
[T]he 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 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.
Walpole, 472 U.S. 445 at 455-56, 105 S. Ct. 2768 at 2774 (internal quotation
marks omitted).
Using these guidelines, the Court should give the Adjustment Committee
broad discretion in determining what constitutes “some evidence,” with the circuit
court acting as a court of review to determine whether there was any evidence to
support the findings. See Smith, 939 S.W.3d at 355. The “some evidence”
standard is strongest when the Adjustment Committee reviews and can reference
physical evidence for the circuit court to review. See Yates v. Fletcher, 120
S.W.3d 728, 731 (Ky. App. 2003) (in which inmate was disciplined for possession
of stolen property found in his belongings). The standard is weakest in cases
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involving confidential informants. This is because inmates have no absolute due
process right to information exposing the identity of or what the confidential
informant said to the Adjustment Committee; this information remains off the
record for review by the inmate. See Stanford v. Parker, 949 S.W.2d 616 (Ky.
App. 1996); Gilhaus v. Wilson, 734 S.W.2d 808 (Ky. App. 1987); Gaston v.
Coughlin, 249 F.3d 156 (2nd Cir. 2001); Wells v. Israel, 854 F.2d 995, 998-99 (7th
Cir. 1988).
This Court has previously recognized the problems associated with
review of the Adjustment Committee regarding confidential informants. In Conn
v. Morgan, 2007 WL 4373117 (Ky. App. 2007)(2006-CA-002446-MR),1 it was
understood that the Adjustment Committee may consider confidential information
without inmate access to the identity of the informant or the content to which the
informant would testify. Id. at *2. However, “testimony of confidential
informants cannot be given any weight unless there has been a determination that
the informants are reliable.” Id. (citing Brown v. Smith, 828 F.2d 1493, 1495 (10th
Cir. 1987); Taylor v. Wallace, 931 F.2d 698, 701 (10th Cir. 1991); Williams v.
Fountain, 77 F.3d 372, 375 (11th Cir. 1996)). Therefore, to determine whether the
confidential informant qualifies as “some evidence” the reviewing court must be
able to look into the reliability of the informant and the information the informant
provides.
1
We cite to this unpublished opinion because its analysis meets the criteria of Kentucky Rule of
Civil Procedure 76.28(4)(c).
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This Court recognized in Conn that reviewing courts should adhere to
certain guidelines when using a confidential informant to establish “some
evidence.”
Federal courts have held that there is no single mandatory
method for determining and documenting the reliability
of the confidential informant in a prison setting. Taylor,
931 F. 2d at 698; Freitas v. Auger, 837 F.2d 806, 810 n.9
(8th Cir. 1988). Generally, where the disciplinary
committee relies on confidential sources, there must be
sufficient information in the record to convince the
reviewing authority that the disciplinary committee
undertook an independent inquiry and correctly
concluded that the confidential information was credible
and reliable. Taylor, 931 F.2d at 702; McKinny v. Meese,
831 F.2d 728, 731 (7th Cir. 1987); Ortiz v. McBride, 380
F.3d 649, 655 (2nd Cir. 2004).
Id. at *3.
Within these guidelines, courts have recognized several methods for
establishing informant reliability. For instance, the Seventh and Ninth Circuits use
four ways to certify reliability: 1) the oath of the investigating officer as to the truth
of his report containing confidential information, along with his appearance before
the disciplinary committee; 2) corroborating evidence or testimony; 3) a statement
on the record by the disciplinary committee of knowledge of the sources of the
information and their reliability in prior instances; or 4) in camera review of
material documenting the investigator’s assessment of the reliability of the
confidential informant. See Henderson v. U.S. Parole Commission, 13 F.3d 1073,
1078 (7th Cir. 1994) (citing Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir.
1985)); Zimmerlee v. Keeny, 831 F.2d 183, 186-187 (9th Cir. 1987). The Second
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Circuit uses a totality of the circumstances approach looking to the informant’s
motive for giving the information, the specificity of the information, the reliability
of the informant in prior situations, and the degree to which the information is
corroborated by other evidence. See Sira v. Morton, 380 F.3d 57, 78-79 (2nd Cir.
2004); Gaston, 249 F.3d at 163-164.
A final problem exists in cases where the reliability of the confidential
informant is based upon a report of an investigator for the Adjustment Committee.
In Hensley v. Wilson, 850 F.2d 269 (6th Cir. 1988), the Sixth Circuit held that in
finding an inmate guilty, the disciplinary committee could not rely only on the
investigator’s opinion that the informant was credible. Instead, due process
requires that the disciplinary committee have “some evidentiary basis…upon
which to determine for itself that the informant’s story is probably credible.”
Hensley, 850 F.2d at 277. The minimum information necessary to satisfy this
requirement is that the investigator must report that the informant has proved
reliable in the past or that the informant has been independently corroborated. Id.
“The verification procedure need not be comprehensive, the committee need only
include some reference to verification.” Gilhaus, 734 S.W.2d at 810
(citing Goble v. Wilson, 577 F.Supp. 219, 220 (W.D.Ky. 1983)). Thus, we find
that the reliability and trustworthiness of the informant[s] are sufficiently verified.
If the court relies upon the investigator’s report, then the authorities should provide
a contemporaneous record of the evidence to the reviewing court, or the committee
should record its findings and reasoning for the reliability of the confidential
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sources. Hensley, 850 F.2d at 283. However, if the committee can point to
independent corroboration, then this step is unnecessary because the confidential
informant is no longer solely needed to satisfy the “some evidence” standard. See
Espinoza v. Peterson, 283 F.3d 949, 952 (8th Cir. 2002); Turner v. Caspari, 38 F.3d
388, 393 (8th Cir. 1994); Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir. 2001);
Young v. Jones, 37 F.3d 1457, 1460 (11th Cir. 1994).
Upon review of the record in the present case, we cannot locate any
evidence, let alone “some evidence,” supporting the decision of the prison
disciplinary review board as Walpole requires. Upon our review, the initial report
from Lieutenant Walter Gribbins states as follows:
Upon completion of investigation Inmate Thomas is
being issued a disciplinary report. On April 3, 2009,
Inmate Thomas confronted a general population inmate
in front of dorm one. Inmate Thomas told the inmate that
he was going to have to pay yard tax to walk the yard.
The inmate told Thomas he was not going to pay and
walked back into the dorm and got on the phone. Inmate
Thomas entered dorm one and assaulted the inmate while
he was on the phone. Inmate received multiple
lacerations to his right eye and orbital area. Inmate had
to be transferred out of the institution for treatment. This
report will suffice as Inmate Thomas’s summary.
Confidential investigation sent to adjustment officer.
No evidentiary basis was provided to the trial court to support this report, so it is
unknown how or from whom these allegations derived.
After Thomas appealed to the warden and the warden ordered a
retrial, the Adjustment Committee entered the following findings:
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We find [Inmate] Thomas guilty based on the
confidential information received from Lt. Gribbins. The
committee has read the confidential information and
believe[s] it to be true in accordance to policy. The
names of the informants have been omitted for the safety
of the institution and to prevent possible retaliation
against the informants[.] We believe [Inmate] Thomas
hit another [inmate] causing multiple lacerations to his
right eye and orbital area[.]
(Capitalization changed and spelling corrected). Therefore, although the
Adjustment Committee determined that the confidential information was credible,
no such information or explanation for this determination was included in the
record for review.2
Although we understand why, for security reasons, the appellees did
not want Thomas to possess the information from the confidential informant(s), or
the identity of the informant(s), that information nevertheless should have been
filed under seal as part of the trial court record in order to provide for meaningful
review. Without that information, there is simply no evidence in the record to
review supporting the credibility of the disciplinary charge against Thomas.
Rather, we would be called upon to rely on unsupported conclusions written in Lt.
Gribbins report and the Adjustment Committee’s review of the confidential
informant unknown to the courts. This we are not permitted to do. Therefore,
pursuant to the reasoning in Walpole, as well as the standard of review concerning
summary judgment motions, Thomas’s petition should not have been dismissed by
the circuit court.
2
We note that in his designation of record for appeal, Thomas designated the entire record.
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Thomas also alleges that his due process rights were violated when he
was ordered to pay $1,500 in restitution, despite there being no verification in the
record to substantiate this amount; and that his due process rights were violated
when the Adjustment Committee “continued to try and convict him of the same
charged incident report twice more while such was pending in court after the
wardens’ review and denial.” However, because we reverse the circuit court’s
order due to the fact that there was no evidence in the record to support the charge
against Thomas, we need not address these other issues.
Accordingly, the order of the Lyon Circuit Court is reversed. This
case is remanded with instructions for the circuit court to order a new prison
disciplinary hearing not inconsistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Ontario Thomas,
Pro se
Eddyville, Kentucky
Stafford Easterling
Justice and Public Safety Cabinet
Frankfort, Kentucky
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