NAVARO (CECILIO) VS. HANEY (STEVE), ET AL.
Annotate this Case
Download PDF
RENDERED: MAY 13, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001683-MR
CECILIO NAVARO
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 10-CI-00632
STEVE HANEY; TIM SETTLES; TRACEY
NIETZEL; NURSE MURPHY; DAVID MUDD;
and GARY FREDERICK
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
COMBS, JUDGE: Cecilio Navaro appeals the order of the Franklin Circuit Court
that dismissed his petition for declaration of rights. After our review, we affirm.
1
Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110 (5)(b) of the Kentucky Constitution and KRS 21.580.
In August 2009, two inmates at Northpoint Training Center were brutally
attacked by a group of inmates wielding padlocks attached to strings. One of the
victims was severely injured and had to be treated at a local hospital. The other
one was treated at the prison’s medical facilities.
Navaro was accused of being one of the attackers. After the Department of
Corrections (DOC) conducted an investigation, it held a disciplinary hearing for
Navaro. He was found guilty of conspiring, aiding, and attempting to cause
serious physical harm to another inmate, and he received punishment by the loss of
730 days of good-time credit and by 80 days in disciplinary segregation. Navaro
was also ordered to pay restitution for the victims’ medical bills. He submitted an
appeal to the warden, which was denied. Navaro then filed a petition for a
declaration of rights in the Franklin Circuit Court. The DOC filed a motion to
dismiss for failure to state an actionable claim. The trial court granted the motion,
and Navaro filed this appeal.
Kentucky courts have long held that earned good-time credits are
privileges, “merely a conditional gratuity which may be forfeited by the prisoner’s
misconduct.” Fowler v. Black, 364 S.W.2d 164, 164 (Ky. App. 1963), see also
Martin v. Chandler, 122 S.W.3d 540, 543-44 (Ky. 2003). Similarly, the Supreme
Court of the United States has declared, “Prison disciplinary proceedings are not
part of a criminal prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
-2-
Kentucky has developed a standard of “some evidence” for
judicial review of prison disciplinary proceedings. In Smith v. O’Dea, 939
S.W.2d 353, 358 (Ky. App. 1977), this Court held:
in light of the exceptional difficulties confronting prison
administrators, a highly deferential standard of judicial
review is constitutionally appropriate with respect to both
the factfinding that underlies prison disciplinary
decisions and the construction of prison regulations.
Id. at 357.
Kentucky has adopted the standards of the Supreme Court of the
United States for due process requirements in prison disciplinary hearings
involving the loss of good-time credit:
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 fact finder of the evidence relied on and
the reasons for the disciplinary action.
Webb v. Sharp, 223 S.W.3d 113, 117-18 (Ky. 2007), quoting Superintendent,
Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985)
citing Wolff, 418 U.S. at 563-67.
Navaro does not contend that he did not receive notice of the charges
or that the adjustment officer as factfinder did not fulfill her responsibilities.
Rather, he argues that he was denied due process because he was not allowed to
present certain pieces of evidence. We do not agree.
-3-
Navaro also argues that the adjustment officer should have reviewed the
security video of the attack. Kentucky Revised Statute[s] (KRS) 197.020(1)(a)2
authorizes the Department of Corrections to “promulgate administrative
regulations . . . for the government of the prisoners in their deportment and
conduct[.]” Kentucky Administrative Regulations (KAR) have incorporated the
Kentucky Corrections Policies and Procedures (CPP). 501 KAR 6:020. CPP 15.6
addresses adjustment (disciplinary) procedures and programs. CPP
II(C)(4)(b)(3)(c) requires the incident investigator to provide the inmate with “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.” (Emphasis added).
The term documents includes tape recordings. CPP II(C)(4)(b)(3)(c)(2)
mandates that if the document is not given to the inmate, then the inmate must be
provided with a summary of the information contained within it. In this case, the
record does not include a recording of the hearing, but the written summary does
not mention the security tape. While we believe that it might have been prudent
for the adjustment officer to note why the tape was not used, we cannot conclude
that reversible error occurred.
Navaro also argues that it was improper for the adjustment officer not to
consider a log from the gym that day. He alleged that he was in the gym at the
time of the attack. The adjustment officer noted in her findings that the gym log
2
This statute has since been amended by the 2010 General Assembly. However, the amendment
does not affect the subsection pertinent to this case.
-4-
did not have times marked on it and that, therefore, it would be irrelevant. Her
ruling is in accordance with CPP II(C)(4)(b)(3)(c)(2).
Navaro further contends that it was improper for the adjustment officer to
use information from a confidential informant without providing him with the
informant’s identity. However, the record lacks any reference to a confidential
informant. Kentucky Rule[s] of Civil Procedure (CR) 76.12(4)(c)(v) requires
briefs to include citations to the record. While we accord leniency to pro se
appellants, we nonetheless must assume that the trial court’s judgment supported
the evidence if something is entirely omitted from the record. Commonwealth v.
Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
Navaro last argues that he was denied due process because he did not receive
notice of the charge for which he was found guilty. The record shows that he was
charged with “physical action resulting in the death or serious injury of another
inmate,” which is a Category VII (Major Violations) offense. CPP 15.2(II)(C).
However, he was actually convicted of conspiring, aiding, and attempting to
cause serious physical harm to another inmate, which is referred to in the policy
manual as an “inchoate violation.” CPP 15.2(II)E(1) states that a person may be
found to have committed the violation listed in this policy if he:
(a) Attempts to commit the violation;
(b) Solicits another or others to commit the violation;
(c) Conspires with another or others to commit the violation;
(d) Aids the action of another or others in committing the violation.
-5-
The penalty for the offense does not change with the distinction. Accordingly,
Navaro received adequate notice of the charge and has not shown a denial of due
process in this respect. He was given a hearing, and the record shows that he
presented his defense – namely, that he was in the gym during the attack. There
was no error.
The adjustment officer found that the record contained more than
“some evidence” to find that Navaro was guilty. One of the victims named Navaro
as one of his attackers. Two corrections officers identified Navaro from a group of
inmates who were roaming together right before the attack. Additionally, the
recreation leader saw Navaro in proximity of the location of the attack immediately
after it occurred. We cannot agree with Navaro that there was not at least “some
evidence” of his involvement.
We conclude that Navaro received sufficient due process and that there was
some evidence to support the finding that he was guilty. Therefore, we affirm the
order of the Franklin Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
Cecilio Navaro, pro se
Sandy Hook, Kentucky
BRIEF FOR APPELLEE:
Stafford Easterling
Justice and Public Safety Cabinet
Frankfort, Kentucky
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.