WILLIE WARD v. COMMONWEALTH OF KENTUCKY, JUSTICE & PUBLIC SAFETY CABINET
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RENDERED:
OCTOBER 28, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000601-MR
WILLIE WARD
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 04-CI-00168
v.
COMMONWEALTH OF KENTUCKY,
JUSTICE & PUBLIC SAFETY CABINET 1
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE AND SCHRODER, JUDGES; ROSENBLUM, SENIOR JUDGE. 2
SCHRODER, JUDGE:
This is an appeal from an order dismissing an
inmate’s petition for declaration of rights alleging that the
prison disciplinary proceedings against him violated his due
process rights and constituted double jeopardy.
We agree with
the lower court that appellant was not denied due process and
1
The “Notice of Appeal” lists Joel Dunlap, et al as the appellees. The
appellant’s pro se brief lists Joe Stuart, et al as appellee. We corrected
the caption to show the real party in interest.
2
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
that the disciplinary proceedings did not constitute double
jeopardy.
Thus, we affirm.
On July 22, 2004, corrections officer Tony Gray filed
a disciplinary report against appellant, Willie Ward, an inmate
at the Kentucky State Penitentiary (“KSP”).
The report alleged
that Ward had physically assaulted him on that date (physical
action against an employee – a category 7-4 offense) when he and
other officers entered Ward’s cell to remove him for an earlier
violation.
According to Ward, he went before the Adjustment
Committee on August 4, 2004 and the charge was dismissed based
on conflicting evidence.
The disciplinary hearing form dated
August 4, 2004 stated in its findings, “[d]ismissed – conflict
in evidence,” and was signed by the chairman of the Adjustment
Committee and the two other committee members.
There was no
signature by the Warden or indication that the matter had been
reviewed by the Warden.
Thereafter, on August 6, 2004, Joel
Dunlap, investigator of internal affairs, filed a second
disciplinary report against Ward based on his viewing of a
videotape of the July 22 incident, again charging Ward with
physical action resulting in injury to an employee (Gray), a
category 7-4 offense.
On August 16, 2004, a hearing was held on
the second disciplinary report after which the Adjustment
Committee found Ward guilty and assessed a penalty of one-year
disciplinary segregation and forfeiture of two years of non-
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restorable good time credits.
On appeal to the Warden, the
acting Warden concurred with the Adjustment Committee, stating
“[b]ased on the new information provided by Mr. Dunlap, I find
the charge to be appropriate and the penalty is within the
approved range.”
Ward then filed a petition for declaratory
relief in the Lyon Circuit Court challenging KSP’s disciplinary
proceedings against him.
On February 16, 2005, the Lyon Circuit
Court entered its order dismissing the petition.
This pro se
appeal by Ward followed.
Ward argues that KSP violated his due process rights
when they did not follow their own policy.
Specifically, Ward
complains that KSP violated Corrections Policies and Procedures
(CPP) 15.6(VI)(F)(6)(a) which provides, “The Warden or his
designee shall not during his administrative or appellate review
order a rehearing if the action has been dismissed.”
Ward
maintains that when the first charge relative to the July 22
incident was dismissed because of conflicting evidence, another
hearing on the same charge could not be held under the above
provision.
In our view, the above CPP provision was not
violated in Ward’s case because neither the Warden nor his
designee ordered a rehearing in this case.
The first charge was
dismissed by the Adjustment Committee and never came before the
Warden for review.
While it is true that a second disciplinary
report was filed relative to the same charge that had been
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previously dismissed, it is well established that the Double
Jeopardy Clause does not apply to prison disciplinary
proceedings.
Meeks v. McBride, 81 F.3d 717, 722 (7th Cir. 1996);
Garrity v. Fiedler, 41 F.3d 1150, 1152-53 (7th Cir. 1994), cert.
denied, 514 U.S. 1044, 115 S. Ct. 1420, 131 L. Ed. 2d 303
(1995); United States v. Brown, 59 F.3d 102, 104-06 (9th Cir.
1995).
Prison disciplinary proceedings are not criminal
prosecutions.
Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963,
41 L. Ed. 2d 935 (1974).
All that due process requires in a
prison disciplinary proceeding which results in a loss of good
time is:
1) notice of the grounds for the discipline; 2) an
evidentiary hearing; 3) a neutral decision maker; 4) an
opportunity to be present, heard and confront witnesses; and 5)
written findings and conclusions by the decision maker
sufficient for meaningful judicial review.
Id.
Ward was
afforded all of the above in this case.
Ward also argues that KSP violated his due process
rights when Officer Dunlap was permitted to file the second
disciplinary report when he did not personally witness the July
22 incident.
Ward maintains that under CPP 15.6, the individual
who writes up the disciplinary report must personally witness
the incident.
CPP 15.6(VI)(C)(1)(a) actually provides, “The
Disciplinary Report shall be clear, concise and contain only the
facts the reporting employee has personally witnessed or
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otherwise verified, including a statement of how verification is
made.”
Hence, the witness need not personally witness the
incident if he can verify the facts alleged and state how the
facts were verified.
In the disciplinary report filed by
Officer Dunlap, Dunlap stated that he watched a videotape of the
incident and described the events he saw on the videotape.
In
our view, this was sufficient verification of the facts.
Ward next argues that one of the adjustment officers,
Lt. Jay Jones, who sat on the hearing on the second disciplinary
report on August 16, 2004, also sat on the Adjustment Committee
on the first disciplinary report in violation of CPP
15.6(VI)(A)(4)(a)(3).
Our review of the record indicates that
Lt. Jones sat on the Adjustment Committee for the hearing on the
second charge only.
Hence, this argument is devoid of merit.
Ward also raises the argument that he was denied due
process when he lost good time credit that he had not yet
earned.
This argument was not raised before the Lyon Circuit
Court.
Accordingly, it was not preserved and is precluded from
our review.
CR 59.06; Kaplon v. Chase, 690 S.W.2d 761 (Ky.App.
1985).
Ward’s remaining argument is that the evidence before
the Adjustment Committee was insufficient to support the finding
that he was guilty of physical action resulting in an injury to
an employee.
The requirements of due process are satisfied in
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prison disciplinary decisions if there is some reliable evidence
to support them.
Superintendent, Massachusetts Correctional
Institution, Walpole v. Hill, 472 U.S. 445, 105 S. Ct. 2768, 86
L. Ed. 2d 356 (1985); Smith v. O’Dea, 939 S.W.2d 353 (Ky.App.
1997).
Here, the Adjustment Committee based its decision on the
viewing of the videotape of the incident and the facts provided
by Officer Dunlap – that Ward hit Officer Gray’s taser shield
when officers attempted to extract Ward from his cell, which
caused Officer Gray to be struck in the head either by Ward or
the taser shield and resulted in Officer Gray suffering a sore
neck.
We believe this to be sufficient reliable evidence to
support the Adjustment Committee’s findings.
For the reasons stated above, the order of the Lyon
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE JUSTICE
& PUBLIC SAFETY CABINET
Willie Ward, pro se
Eddyville, Kentucky
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