DAVID TAYLOR v. GEORGE MILLION AND LIEUTENANT JOHN UNDERWOOD
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RENDERED: August 1, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-000670-MR
DAVID TAYLOR
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 01-CI-00169
v.
GEORGE MILLION AND
LIEUTENANT JOHN UNDERWOOD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE:
JOHNSON, SCHRODER, AND TACKETT, JUDGES.
TACKETT, JUDGE:
David Taylor appeals from an order of the
Morgan Circuit Court dismissing his petition for declaration of
rights brought pursuant to Kentucky Revised Statute (KRS)
418.040 involving the imposition of disciplinary penalties for
the violation of the prison regulation prohibiting sexual
assault.
We affirm.
David Taylor and C.W. were inmates at the Eastern
Kentucky Correctional Complex in West Liberty, Kentucky.
On
June 19, 2001, the prison internal affairs office received
information from a confidential source that C.W. had been
physically assaulted and raped by Taylor two days earlier on the
morning of June 17, 2001.
Upon investigation, C.W. made a
statement to the prison officials that when he brought cigarette
papers to Taylor at his cell, Taylor pulled C.W. into his cell,
grabbed him by the throat, and told him that if he screamed he
would kill him.
sex with C.W.
Taylor allegedly then proceeded to have anal
During the investigation of the alleged incident,
Taylor told prison personnel that he and C.W. were lovers but he
denied raping C.W.
On July 9, 2001, Taylor was given an incident report
entitled Disciplinary Report Form — Write up and Investigation,
which recounted the above alleged facts, stated the confidential
information was deemed reliable, and charged Taylor with
violation of the Corrections Policies and Procedures (CPP) 15.2,
Category VII Item 3, sexual assault, a major violation.
then placed in administrative segregation.
He was
Taylor initially
asked for staff counsel to assist him but when problems
developed between them, an inmate legal aid was assigned to
assist Taylor.
The report notes that the confidential
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information was being forwarded to the disciplinary adjustment
officer.
On July 19, 2001, a hearing was held before an
Adjustment Officer.
inmate legal aide.
Taylor was present and assisted by an
Taylor called seven witnesses, two of whom
stated they knew nothing of the incident, and two stated they
had no comment or testimony to offer.
J. McCoy, an inmate
witness, testified that C.W. had told him that he (C.W.) was
tired of having sex with Taylor.
Taylor denied having sexually
assaulted C.W., but he admitted having had sex with C.W. on 1012 prior occasions and stated that they had had consensual sex
on the morning of June 17.
Taylor challenged C.W.’s credibility
based in large part on the two-day delay between the date of the
incident and the date it was reported to prison authorities.
After the hearing, the Adjustment Officer found Taylor
guilty of sexual assault based on the disciplinary report,
McCoy’s testimony, Taylor’s admission of sexual conduct with
C.W., and the confidential information, which he deemed
reliable.
The Adjustment Officer imposed a penalty of 365 days
in disciplinary segregation and non-restorable forfeiture of
1,080 days of good time.
Upon administrative appeal, the prison
warden concurred with the decision of the Adjustment Officer.
On October 29, 2001, Taylor filed a petition for
declaration of rights assailing the disciplinary action on due
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process grounds involving the administrative procedure, the
disciplinary reports, and the handling of the confidential
information.
On November 21, 2001, the Department of
Corrections filed a combined response and motion to dismiss
denying any constitutional violations.
It submitted an
affidavit from the Adjustment Officer in support of its motion.
On November 27, 2001, the trial court entered an order granting
the motion to dismiss the petition and rejecting Taylor’s
constitutional claims.
This appeal followed.
On appeal, Taylor raises numerous challenges to the
disciplinary proceeding based on 14th Amendment constitutional
due process grounds.
First, he contends that he was not
provided sufficient assistance because he only had five minutes
to consult with his inmate legal aide prior to the disciplinary
hearing.
At the beginning of the hearing, Taylor stated that he
was satisfied with having an inmate legal aide to assist him and
did not mention inadequate access for consultation.
Although
the legal aide requested a continuance, which was denied, his
basis for the request was to interview additional witnesses.
Taylor’s appeal to the prison warden did not mention the
consultation issue.
“The failure to raise an issue before an
administrative body precludes a litigant from asserting that
issue in an action for judicial review of the agency’s action.”
O’Dea v. Clark, Ky. App., 883 S.W.2d 888, 892 (1994) (citing
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Personnel Board v. Heck, Ky. App., 725 S.W.2d 13 (1986)).
Taylor’s failure to raise this issue in the prison disciplinary
proceedings constitutes a waiver preventing judicial review of
that issue.
See O’Dea v. Clark, supra (involving failure to
raise issue of chain of custody for urine sample in prison
disciplinary action).
Taylor’s primary complaints concern the use of
confidential information in the disciplinary proceedings.
First, he argues that he was improperly denied a summary of any
documents related to the statements by confidential informants.
Second, he contends the prison authorities failed to properly
account for the reliability of the confidential sources.
In Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct.
2963, 2975, 41 L.Ed.2d 935 (1974), the United States Supreme
Court recognized that “[p]rison discipline proceedings are not
part of a criminal prosecution, and the full panoply of rights
due a defendant in such proceedings does not apply.”
Moreover,
given security concerns in the prison setting, an inmate’s right
to confront his accuser and cross-examine witnesses may be
circumscribed within the sound discretion of prison officials.
Id. at 568-69, 94 S.Ct. at 2981.
While the Court in Wolff dealt
with procedural requirements, in Superintendent, Massachusetts
Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105
S.Ct. 2768, 86 L.Ed.2d 356 (1985), the Supreme Court articulated
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the substantive quantum of evidence required to support a
decision in a prison disciplinary proceeding.
It held that
disciplinary action negatively impacting a protected liberty
interest must be supported by “some evidence in the records” in
order to comport with the minimum requirements of due process.
Id. at 454, 105 S.Ct. at 2773.
“Ascertaining whether this
standard is satisfied does not require [a reviewing court’s]
examination of the entire record, independent assessment of the
credibility of witnesses or weighing 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.”
Id. at 455-56, 105 S.Ct. at 2774.
Case law has clearly recognized the legitimate use of
confidential information and limited access to the identity of
confidential informants in prison disciplinary actions.
See,
e.g., Stanford v. Parker, Ky. App., 949 S.W.2d 616 (1996);
Gilhaus v. Wilson, Ky. App., 734 S.W.2d 808 (1987); Gaston v.
Coughlin, 249 F.3d 156 (2d Cir. 2001).
Inmates have no absolute
due process right to information possibly exposing the identity
of a confidential informant because of the legitimate need to
prevent retaliation.
See, e.g., Hensley v. Wilson, 850 F.2d
269, 278-79 (6th Cir. 1988); Wells v. Israel, 854 F.2d 995, 99899 (7th Cir. 1988); Stanford, supra.
Thus a disciplinary
committee may consider confidential information even though the
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inmate has not been permitted access to it.
However, testimony
of confidential informants cannot be given any weight unless
there has been a determination that the informant was reliable.
See 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).
The majority of
courts hold that due process requires the disciplinary committee
to make an independent assessment and to document the
reliability of confidential informants upon whose testimony it
relies.
See Hensley, supra; Taylor, supra; Whitford v. Boglino,
63 F.3d 527 (7th Cir. 1995); Freitas v. Auger, 837 F.2d 806 (8th
Cir. 1988).
A major purpose for the requirement that the
disciplinary committee document its assessment of the
reliability of confidential sources is to enable meaningful
appellate review of prison disciplinary proceedings.
Williams,
77 F.3d at 375; Kyle v. Hanberry, 677 F.2d 1386, 1390-91 (11th
Cir. 1982).
The federal courts have held there is no single
mandatory method for determining the reliability of a
confidential informant in a prison setting.
See Taylor, supra;
Freitas, supra; Mendoza v. Miller, 779 F.2d 1287 (7th Cir. 1985).
Generally, where an inmate is disciplined solely or primarily on
the basis of confidential information, there must be sufficient
information in the record to convince a reviewing authority that
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the disciplinary committee undertook an independent inquiry and
correctly concluded that the confidential information was
credible and reliable.
Id.; McKinney v. Meese, 831 F.2d 728 (7th
Cir. 1987); Broussard v. Johnson, 253 F.3d 874 (5th Cir. 2001).
On the other hand, some cases have recognized that
where there is sufficient evidentiary basis under the “some
evidence standard” independent of the information from
confidential sources to support the disciplinary action, there
is no due process violation.
When there is other evidence supporting the
disciplinary decision, due process is
satisfied “without determining the
reliability of the confidential informant”
or the institutional reasons for
nondisclosure. Any other rule would violate
the core principle that the some evidence
standard “does not require examination of
the entire record, independent assessment of
the credibility of witnesses, or weighing of
the evidence.”
Espinoza v. Peterson, 283 F.3d 949, 952 (8th Cir. 2002)(internal
citations omitted), cert. denied, ___ U.S. ___, 123 S.Ct. 277,
154 L.Ed.2d 119 (2002).
See also Turner v. Caspari, 38 F.3d 388
(8th Cir. 1994); Williams, supra.
In the current case, the Adjustment Officer relied in
part on confidential information.
The incident report states
that the confidential information was forwarded to the
Adjustment Officer.
The hearing report indicates that the
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Adjustment Officer did conduct an independent analysis of the
confidential information and found it reliable.
Unfortunately,
the record before the circuit court and this Court does not
contain any of the documents related to the confidential
information.1
The better practice would have been for the
Department of Corrections to submit these documents to the
circuit court for in camera appellate review with their response
and motion to dismiss given Taylor’s complaints concerning the
use of confidential information in the disciplinary proceeding.
Nevertheless, we believe Taylor’s petition was properly
dismissed even though our review would have benefited from
inclusion of those documents in the record.
1
CPP 9.18 sets out the procedures for dealing with confidential
informants. All confidential information presented to the Adjustment
Committee should be in writing and the identity of the informant
revealed to at least the chairperson. CPP 9.18, Section VI (A)(4) and
(5). The reliability of the confidential informant should be
determined by the Adjustment Committee and clearly specified. CPP
9.18, Section VI (A)(6). The hearing report should include a summary
of the informant’s statements, a statement for finding the
confidential information reliable, and identify the specific
information relied upon. CPP 9.18, Section VI (A)(7). If the
chairperson determines that placing the above-mentioned information in
the hearing report may reveal the identity of the informant, a
separate confidential report should be prepared containing a copy of
the confidential informant’s statements and a statement identifying
the information relied on by the committee “available to appropriate
staff for purposes of later administrative or judicial review.” CPP
9.18 Section VI (A)(8). The current appellate record does not contain
the identity of or the specific information received from the
confidential source.
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Taylor’s argument that he did not receive a summary of
the confidential informant’s statements is without merit.
Prison officials have discretion in providing confidential
information to an inmate.
During the disciplinary hearing, the
Adjustment Officer told Taylor that he would be limited to the
information contained in the incident report.
The incident
report included a detailed description of the incident
sufficient for him to prepare a defense.
We cannot say the
prison authorities abused their discretion on this issue.
Taylor’s challenge to the disciplinary action based on
the handling of the confidential information is also unavailing.
In addition to the confidential information, the Adjustment
Officer listed several other evidentiary items for his decision
including the investigation report, Taylor’s statement that he
had had sexual contact with C.W. at the time in question, and
the testimony of J. McCoy that C.W. stated he was tired of
having sex with Taylor.
The Adjustment Officer also had C.W.’s
statement describing the assault as reflected in the incident
report.
Taylor attacked C.W.’s credibility primarily based on
the two-day delay in his reporting the sexual assault to prison
authorities.
In reviewing prison disciplinary decisions, the
weighing of evidence and assessment of credibility is left to
the hearing officers.
Although not extensive, there is enough
evidence to support the Adjustment Officer’s decision under the
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“some evidence” standard regardless of the confidential
information.
Thus, Taylor has not shown he was deprived of due
process.
For the foregoing reasons, we affirm the order of the
Morgan Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
David Taylor, Pro Se
Eddyville, Kentucky
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