DUAN CALLOWAY, SR. v. PATTI WEBB
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RENDERED: July 30, 2004, 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002038-MR
DUAN CALLOWAY, SR.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 03-CI-00284
v.
PATTI WEBB
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, KNOPF, AND SCHRODER, JUDGES.
SCHRODER, JUDGE.
This is an appeal from an order dismissing an
inmate’s declaratory judgment action alleging multiple due
process violations in a prison disciplinary proceeding.
Upon
review of the record, we agree with the lower court that
appellant was not denied due process in the course of the
disciplinary proceeding.
Hence, we affirm.
On June 21, 2001, appellant, Duan Calloway, an inmate
at the Eastern Kentucky Correctional Complex, and a fellow
inmate, Malcom Graham, were charged by the prison with
assaulting inmate David Jarboe.
The write-up and investigation
form, which was completed by Lt. Fred Wilson and provided to
Calloway, stated that on June 21, 2001, at approximately 8:35
p.m., Calloway and Graham assaulted Jarboe in Dorm 2, C Upper
Wing and Jarboe sustained serious physical injury as a result of
the assault.
The report stated that a towel with blood spots on
it was found in CU 2, where Calloway and Graham lived.
The
report also made reference to the fact that a confidential
report was made to the adjustment officer.
On July 9, 2001, a
memorandum was issued by Lt. John Underwood stating that he had
received information from one to ten different sources that were
deemed reliable that on June 21, 2001, inmate Calloway and
Graham assaulted Jarboe.
On July 12, 2001, a hearing was held
in which the adjustment officer found Calloway guilty and
sentenced him to 180 days of segregation and 720 days of
forfeited nonrestorable good time.
The adjustment officer based
his findings on the disciplinary report, the towel with the
blood stains, and information from confidential informants whom
were deemed reliable.
On August 2, 2001, the warden affirmed
the adjustment officer’s findings and sentence.
Thereafter, on November 27, 2001, upon Calloway’s
motion to reconsider, the warden granted a rehearing based on
the fact that the towel used as evidence against Calloway was
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not ever made available for Calloway’s inspection.
Consequently, a new disciplinary report and investigation form
was completed on December 15, 2001, wherein there was no mention
of the towel as evidence against Calloway.
Pursuant to the
rehearing on December 18, 2001, the adjustment officer found
Calloway guilty based on the disciplinary report of Lt. Wilson
and the information from the confidential informants whom he
deemed reliable.
Upon appeal to the warden, the warden granted
Calloway another retrial due to procedural errors that were
unclear from the record.
On January 22, 2002, another disciplinary
report/investigation form was completed by Lt. Wilson.
This
disciplinary report again made no mention of the bloody towel.
The report stated that he received information from confidential
informants whom he deemed reliable that Graham and Calloway were
observed kicking Jarboe while he was lying in Dorm 2 C Upper
Wing.
Pursuant to another hearing held on February 12, 2002,
the adjustment officer again found Calloway guilty based on the
disciplinary report of Lt. Wilson and information from
confidential informants whom he deemed reliable.
These findings
were initially affirmed by the warden, but later another
rehearing was granted to determine whether the victim sustained
serious physical injury.
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On March 4, 2003, a fourth disciplinary
report/investigation form was submitted by Lt. Wilson, which
contained the same description of the incident as the
January 22, 2002, report except the later report referenced a
medical bill documenting the victim’s treatment for his
injuries.
This report charged Calloway with physical action
resulting in injury to another inmate.
The adjustment officer
found Calloway guilty based on the disciplinary report and the
information from the reliable confidential informants. Calloway
was again sentenced to 180 days segregation and 720 days of
forfeited nonrestorable good time.
On March 28, 2003, the
warden issued a memorandum affirming the decision of the
adjustment officer.
Subsequently, on June 27, 2003, Calloway filed a
petition for declaratory judgment in the Muhlenberg Circuit
Court alleging the following due process violations relative to
the prison disciplinary proceeding:
lack of evidence that the
victim sustained a serious physical injury; failing to produce
the blood-stained towel at the hearing; failure to provide
Calloway, prior to the hearing, a summary of the confidential
informants’ statements; failure to provide Calloway with a
written statement regarding the evidence relied on to support
the finding that the victim sustained a serious physical injury;
failure to provide Calloway with particular facts on which the
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charge was based prior to the hearing; and failure to cure due
process violations upon rehearing.
On August 28, 2003, the
court entered an order dismissing the petition, finding that no
due process violations occurred in the course of the prison
disciplinary proceeding.
This appeal by Calloway followed.
Calloway’s first argument is that the circuit court
erred in failing to address the constitutional validity of each
issue raised in the declaratory judgment action.
It has been
held that a court reviewing a prison disciplinary proceeding in
a declaratory judgment action is not required to make
independent findings of fact.
S.W.2d 353 (1997).
Smith v. O’Dea, Ky. App., 939
In any event, the circuit court’s judgment
clearly stated that it adjudged no due process violations.
Hence, this argument is devoid of merit.
Calloway next argues that no evidence was presented
that the victim suffered a serious physical injury.
In Smith v.
O’Dea, this Court adopted the federal standard for review of a
prison disciplinary proceeding which requires that there be only
some evidence to support the findings of the prison disciplinary
body.
Id. at 357-358.
At the third and final rehearing on the
matter, a medical bill from the hospital where Jarboe was
treated on June 21, 2001, for his injuries was offered, as well
as an accident/extraordinary occurrence report which stated that
Jarboe had a large lump and bruise to the right side of his
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head, a laceration on the left side of his head, a laceration on
his right arm, bruising on his right side, and a scratch on his
neck.
We believe this constituted “some” evidence to support
the finding.
Calloway also complains that the towel with blood
stains was not produced at the hearing.
Since the towel in
question was not considered as evidence in the final ruling by
the adjustment officer and warden, there was no error in failing
to offer the towel as evidence at the hearing.
Another of Calloway’s assignments of error is that he
was not provided with a written statement of the evidence relied
on by the adjustment officer in finding that the victim suffered
a serious physical injury.
In Wolff v. McDonnell, 418 U.S. 539,
94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), the Court held that the
fact finder in a prison disciplinary proceeding must make
written findings of fact sufficient for a meaningful judicial
review.
brief.
The Court acknowledged that these findings may be
See Smith v. O’Dea, 939 S.W.2d at 357.
In his findings
on the final rehearing in the present case, the adjustment
officer stated that his decision was based on the disciplinary
report of Lt. Wilson.
This report, dated March 4, 2003, clearly
stated the victim received “serious physical injury as evidenced
by the attached medical bill outlining inmate Jarboe’s treatment
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at ARH Hospital.”
We believe the adjustment officer’s findings
were sufficient on this issue.
Calloway also maintains that he was unconstitutionally
deprived of a summary of the particular facts comprising the
charge against him prior to the hearing.
In Wolff, 418 U.S. at
564, 94 S. Ct. at 2978-2979, it was likewise held that due
process requires that the inmate in a prison disciplinary
proceeding be given advance written notice of the disciplinary
charges, which notice must be sufficient to enable the inmate to
prepare a defense.
Upon review of the final disciplinary
report/investigation form that was provided to Calloway prior to
the final hearing, we believe the summary of the charge was
sufficient to allow him to prepare a defense to the charge.
The
summary gave the specific date, time, and place of the incident.
The summary further stated that he and Graham were observed
kicking the victim while Jarboe was lying down and that Jarboe
sustained a serious physical injury as a result of the assault.
Calloway also claims that he was denied due process
when he was not given a summary of the statements from all ten
confidential informants in the case.
In a prison disciplinary
proceeding where information from confidential informants is
relied upon, it is not required that the charged inmate receive
such detailed information as would enable him to identify the
informants.
Gilhaus v. Wilson, Ky. App., 734 S.W.2d 808 (1987).
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As stated above, Calloway was provided with sufficient details
of the charged offense to allow him to prepare a defense.
Nothing more is required.
Calloway’s remaining argument is that the warden
improperly failed to take action to cure the alleged due process
violations upon rehearing.
As noted earlier, Calloway was given
three rehearings in this case for various reasons.
In our view,
the warden made every effort to see that due process was
afforded Calloway in the matter.
Since we have adjudged there
were no due process violations relative to the final hearing and
decision, there were no due process errors for the warden to
cure.
Hence, this argument has no merit.
For the reasons stated above, the judgment of the
Muhlenberg Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Duan Calloway, Sr., pro se
Central City, Kentucky
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