JEREMY BOYD v. PATTI WEBB, WARDEN
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RENDERED: August 6, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001583-MR
JEREMY BOYD
v.
APPELLANT
APPEAL FROM MUHLENBURG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 03-CI-00216
PATTI WEBB, WARDEN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; AND EMBERTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Jeremy Boyd has appealed from an order entered
by the Muhlenburg Circuit Court on July 10, 2003, dismissing his
petition for declaration of rights.
The dismissal had the
effect of allowing the findings of the warden of the Green River
Correctional Complex in a disciplinary action to stand.
1
Having
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
concluded that Boyd received all of the due process to which he
was entitled, we affirm.
During an investigation of drug activity at the
Western Kentucky Correctional Complex, Jason Ortt, a maintenance
supervisor, admitted that he had brought marijuana into the
institution.
Ortt claimed that on February 17, 2003, he brought
the marijuana into the correctional complex in two green
balloons and that Boyd was going to pay him approximately
$400.00 for it.
On February 18, 2003, a green balloon
containing a green, leafy substance was found in the prison
yard.
Subsequent testing revealed the substance to be
marijuana.
Based on Ortt’s statements concerning the marijuana,
Lieutenant Roland Woodrum took disciplinary action against Boyd.
On February 20, 2003, Boyd was charged in a prison disciplinary
action with promoting dangerous contraband, inchoate, a Category
6, Item 4 violation.
At a disciplinary hearing held on March
20, 2003, Boyd was found guilty and assessed a penalty of 90
days in segregation, forfeiture of 180 days of good-time
credits, and forfeiture of 180 days of non-contact visitation.
Boyd filed a petition for declaration of rights in the
Muhlenburg Circuit Court on May 12, 2003, challenging the
disciplinary action.
The warden filed a motion to dismiss,
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which was granted in an order entered on July 10, 2003.
This
appeal followed.
Boyd contends that his due process rights were
violated as follows: 1) that he was denied the opportunity to
call witnesses to testify in his favor; 2) that he was not
afforded the right of confrontation and cross-examination; 3)
that the adjustment committee chairman failed to make adequate
findings of fact; 4) that the evidence relied upon was
insufficient to find him guilty; 5) that he did not receive a
hearing from a fair and impartial tribunal since the adjustment
committee was composed of only one person; and 6) that the
laboratory report claiming the substance to be marijuana was not
accompanied by an adequate chain of custody form.
In Wolff v. McDonnell,2 the Supreme Court of the United
States set forth the basic due process procedures required for a
prison disciplinary hearing.
The prison facility must give the
inmate written notice of the charges to be brought against him
to enable him to marshal a defense, there must be a written
statement by the fact-finder as to the evidence relied upon for
the disciplinary action, and the inmate should be allowed to
call witnesses and to present evidence in his defense unless
2
418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
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doing so would be unduly hazardous to institutional safety and
correctional goals.3
It is well-established by the courts that “wide
latitude” will be given to authorities charged with handling
prison disciplinary hearings.4
While the Supreme Court has noted
that it would be useful for a hearing committee to state its
reasons for refusing to call a witness, “whether it be for
irrelevance, lack of necessity, or the hazards presented in
individual cases,” it is not mandated by the courts.5
In the case sub judice, the hearing officer attempted
to contact Ortt by telephone during the hearing, to no avail.
However, it is important to note that Ortt had already expressed
his unwillingness to make any further statements concerning the
allegations.
While the right to confront one’s accuser is essential
in criminal trials, the rights to confrontation and crossexamination are “not rights universally applicable to all
hearings.”6
Boyd cites several cases discussing the fundamental
rights to confrontation and cross-examination, nearly all of
which are criminal cases and therefore irrelevant to prison
3
Id. 418 U.S. at 563-64, 566.
4
Goble v. Wilson, 577 F.Supp. 219, 221 (1983).
5
Wolff, 418 U.S. at 566.
6
Id. 418 U.S. at 567.
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disciplinary hearings.
As an administrative civil hearing, the
prison disciplinary hearing was not bound by the same procedures
as a criminal trial.
Thus, even though a prisoner retains
certain rights under the Due Process Clause, that fact “in no
way implies that these rights are not subject to restrictions
imposed by the nature of the regime to which they have been
lawfully committed.”7
Boyd simply does not have an absolute
right to confront or to cross-examine witnesses in a prison
disciplinary hearing.8
However, while this right is limited by
considerations of institutional safety, the institution in the
case sub judice has not suggested any basis for such a concern
other than Ortt’s past act of bringing marijuana into the
institution.9
testify.
Thus, Ortt should have been made available to
However, there remains the question of his
unwillingness to testify.
The only evidence of record indicates
that Ortt refused to provide any information concerning the
marijuana other than the statement that he gave to correctional
authorities implicating Boyd.
Hence, based upon Ortt’s previous
statement incriminating Boyd, and the fact that there is no
evidence that he was inclined to change his previous statement,
7
Id. 418 U.S. at 556.
8
Goble, 577 F.Supp. at 220.
9
We are confident that prison security is such that the likelihood of Ortt
repeating such conduct on a trip to the prison to testify would be
infinitesimal.
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we conclude that Boyd was not denied due process as a result of
his inability to confront Ortt.
We further conclude that the prison disciplinary
hearing satisfied Boyd’s due process rights with respect to the
sufficiency of the evidence.
Pursuant to Superintendent,
Massachusetts Correctional Institution, Walpole v. Hill,10 due
process is met if there is “‘some evidence from which the
conclusion of the administrative tribunal could be deduced. . .
.’”11
In fact, the real question is whether there is “any
evidence in the record that could support the conclusion reached
by the disciplinary board”12 [emphasis added].
Evidence does not
have to be so overwhelming that the decision reached by the
disciplinary board is the only one that could be reached.
Rather, evidence is sufficient, although it might be
“characterized as meager,” if the “record is not so devoid of
evidence that the findings of the disciplinary board were
without support or otherwise arbitrary.”13
In Hill, three men were seen running away from an
assault victim in the state prison in Walpole, Massachusetts.
While there was no witness to the actual assault, the mere fact
10
472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
11
Id. 472 U.S. at 455 (quoting United States ex rel. Vajtauer v. Commissioner
of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 304, 71 L.Ed.2d 560 (1927)).
12
Id. 472 U.S. at 455-56.
13
Id. 472 U.S. at 457.
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they were running from the scene was enough evidence to support
a conviction by the disciplinary hearing board.
In the present
case, there is even stronger evidence, and clearly enough
evidence to meet the “some evidence” standard.
Ortt and a prison informant both told the prison
officials about Boyd’s plan to have Ortt smuggle marijuana into
the prison.
In addition, a green balloon containing marijuana
was found in a van that was accessible to Boyd.
While this does
not preclude any other explanations or theories concerning the
ownership of the marijuana, the evidence is clearly enough under
the Hill standard for the disciplinary action taken against
Boyd.
Boyd also contends that he did not receive a fair
hearing because the tribunal consisted of only one person, who
Boyd claims held a grudge against him.
According to prison
regulations, the prison warden may determine whether to use an
Adjustment Committee or a single Adjustment Officer, who
performs under the same requirements as a committee.14
In
addition, there is no evidence in the record to indicate that
the hearing officer had a bias against Boyd, or that he was
seeking “revenge” against him as Boyd claims.
While Boyd was an
inmate at the Western Kentucky Correctional Complex and the
investigation took place at that correctional complex, the
14
Kentucky Correction Policies and Procedures (CPP) 15.6.
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hearing itself was held at the Green River Correctional Complex
by an Adjustment Officer at that complex.
Boyd also claims that
the hearing officer berated him during the hearing, but there is
no proof of this allegation.
From the audio tape provided with
the record, this Court can only conclude that the hearing was
fair and impartial.
Finally, Boyd argues that a proper chain of custody of
evidence was not established.
Boyd relies on Byerly v. Ashley,15
but that case is not directly in point with the case before this
Court.
In Byerly, the appropriate chain of custody was
established for sending the urine specimen outside of the prison
for testing.
The prison was testing an inmate for the purposes
of determining whether he had used alcohol or unauthorized
drugs.16
Since the laboratory staff did not complete the proper
paperwork and since the urine sample was the only evidence in
the case, it was found to be unreliable and insufficient to
support a finding of guilt.
The Court went on to say that
“fundamental fairness dictates that the evidence relied upon to
punish him at least be reliable.”17
In the present case, the evidence never left the
prison facility.
Thus, the same dangers of tampering,
15
Ky.App., 825 S.W.2d 286 (1991).
16
Id. at 287.
17
Id. at 288.
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misplacing or switching samples that might be of concern when
the evidence is sent out of the prison, were not as great of a
concern in this situation.
Additionally, in Byerly, the urine
sample was the only evidence relied upon by the Adjustment
Committee.
If the sample had been tainted, there was no other
evidence to support the charge.
In the case sub judice, the
marijuana was not tested to prove a specific link between the
drug and the inmate as in Byerly, but only to show that the
substance was indeed marijuana.
The linking of the contraband
to Boyd was done through Ortt’s statement.
The marijuana-filled
balloon was not the only evidence relied upon to convict Boyd,
since there were also statements from Ortt and the informant.
Thus, even without the lab test of the alleged marijuana, the
statements were sufficient to provide “some evidence” to support
a finding of guilt in the disciplinary action.
Although inmates have due process rights in prison
disciplinary hearings, the courts must “afford appropriate
deference and flexibility to state officials trying to manage a
volatile environment.”18
While prisoners still have
constitutional rights, “‘[l]awful incarceration brings about the
necessary withdrawal or limitation of many privileges and
18
Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132 L.Ed.2d 418
(1995).
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rights, a retraction justified by the considerations underlying
our penal system.’”19
For the foregoing reasons, the judgment of the
Muhlenburg Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeremy Boyd, Pro Se
Central City, Kentucky
Valerie Marshall
Frankfort, Kentucky
19
Id. 515 U.S. at 485 (quoting Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 2537, 53 L.Ed.2d 629
(1977)(quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92
L.Ed. 1356 (1948))).
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