PETTY (ANTHONY) VS. WEBB (PATTI R.)Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 06-CI-00599
PATTI R. WEBB, WARDEN, (GRCC)
** ** ** ** **
BEFORE: CLAYTON AND DIXON, JUDGES; GRAVES,1 SENIOR JUDGE.
CLAYTON, JUDGE: Anthony Petty appeals from an order of the Muhlenberg
Circuit Court dismissing his action for declaratory judgment. Appellant asserts
that his due process rights were violated in a prison disciplinary proceeding. For
the reasons stated below, we affirm.
Senior Judge John W. Graves, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
On August 27, 2006, appellant Anthony Petty was being escorted to
med watch2 by two deputies, Robert Reynolds and Donivin Good, and became
disrespectful toward Reynolds. At this point, Good attempted to escort appellant
to lock down. As Good reached for appellant, appellant slapped Good’s hand
away, and raised his fists. At this point, both deputies had to restrain appellant,
wrestling him to the ground while handcuffing him. During this altercation, both
deputies received minor abrasions to their hands. As a result of this incident,
appellant was charged with a violation of CPP3 15.2, Category VII-1, “Physical
action against an employee or non-inmate.” This charge carried a maximum
penalty of up to 180 days in disciplinary segregation and up to two years loss of
non-restorable good time.
The incident was reviewed by the deputies’ supervisor and an
investigation was conducted. The results of this were given to appellant on
October 13, 2006, along with notification of the hearing for the charge, which was
set for October 26, 2006.
Prior to the hearing, appellant pled not guilty and requested Chris
Hardy, an inmate who witnessed the incident as his sole witness. Hardy gave a
written statement, and was not called to testify at the hearing. At the hearing, the
charge was amended to a Category VII-4 charge, “Physical action resulting in the
Both parties use this term to describe the destination to which prison personnel were escorting
inmate Petty. While not entirely clear from the briefs, we presume that the term “med watch”
refers to the infirmary.
Kentucky Corrections Policies and Procedures
death or injury of an employee or non-inmate.” The charge was amended pursuant
to CPP 15.6(II)(B)(1)(b)(2), which allows for a charge to be amended “to conform
to the evidence presented.” Based on the evidence presented at the hearing,
namely the written statements of both deputies involved and the written statement
of witness Hardy, appellant was found guilty of the Category VII-4 charge.
Appellant was given the maximum sentence that this charge carried, 365 days of
disciplinary segregation and the loss of four (4) years non-restorable good time.
Appellant appealed this finding to the warden, appellee, who affirmed
the decision. Appellant then sought judicial review of this decision in Muhlenberg
Circuit Court and filed an action for declaratory judgment on November 20, 2006.
Appellee filed a motion to dismiss, and on March 2, 2007, the action was
Appellant now seeks review of the motion to dismiss. The issue on
appeal is whether the circuit judge erred in finding that appellant failed to
demonstrate a procedural or substantive due process violation in connection with
the disciplinary proceedings at issue. The standard of review for a prison
disciplinary proceeding is whether the findings of fact are supported by some
evidence. Smith v. O’Dea, 939 S.W.2d 353 (Ky. App. 1997). In that case, this
Court held that it should focus on “the administrative record already in existence.”
Id. at 356.
The Supreme Court has stated that “though his rights may be
diminished by the needs and exigencies of the institutional environment, a prisoner
is not wholly stripped of constitutional protections when he is imprisoned.” Wolff
v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 555 (1974). In that case, the Court
also stated that “[p]rison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such proceedings
does not apply.” Id. at 556. Accordingly, the Court held that due process is
satisfied in the context of prison disciplinary proceedings as long as the inmate
(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 factfinder of the evidence
relied on and the reasons for the disciplinary action.
Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S.
445, 105 S. Ct. 2768, 454 (1985), citing Wolff at 563-567.
Appellant initially argues that his due process right was violated when
he was charged without a “fair investigation” being made. Appellant asserts that,
because the investigating officer relied solely on written statements, he was not
acting in good faith. CPP 15.6(II)(C)(4) details the requirements for an
investigation. Under this regulation, an investigation consists of two parts: the
supervisor’s review and the investigator’s review. Appellant takes issue with the
investigator’s review. According to CPP 15.6(II)(C)(4)(b)(2)(b)(c), the
investigator shall “collect evidence, documents and statements” and “interview
witnesses.” Appellant argues that, without interviewing all witnesses, the
investigation was improper. We cannot agree. The written statement of Good and
Reynolds, along with the statement of inmate Hardy, are more than sufficient to
satisfy the “good faith” investigation requirement set out in Ivey v. Wilson, 577 F.
Supp. 169, 172 (WD Ky. 1983). Appellant offers no hint of what a fuller
investigation might have uncovered, and clearly prison officials have no duty to
engage in a “fishing expedition” in an effort to uncover exculpatory evidence. We
therefore find no violation of the written policy concerning investigation, or the
Ivey requirement of good faith.
Appellant also argues that his right to due process was violated when
the Adjustment Committee Officer denied allowing appellant to question his
witness, inmate Hardy. However, the Supreme Court has stated that “it does not
appear that confrontation and cross-examination are generally required in this
context.” Wolff, 418 U.S. 539 at 568. Because prison disruptions are a cause of
concern to prison administrators, the Court has stated that allowing an inmate to
cross-examine a fellow inmate poses a problem, as substantial feelings of
resentment may persist after the confrontation. Id. at 569. As the record indicates
that inmate Hardy submitted a written statement of the incident, we hold there was
no error in the Adjustment Committee’s refusal to allow appellant to crossexamine his own requested witness.
Appellant contends that the failure of the Adjustment Committee
Officer to justify his refusal in writing on Part II of the report to allow appellant to
call and confront the reporting employee, pursuant to CPP 15.6(II)(D)(2)(g)(2), is
reversible error. While no justification was listed on Part II of the report, this was
harmless error – appellant’s due process rights were not affected by this omission,
as under the standard in Wolff, appellant was not entitled to call or confront Good.
Wolff, 418 U.S. 539 at 568.
Thirdly, appellant argues that his right to due process was violated by
the amended charge. Appellant asserts that this violated his rights due to
insufficient evidence or denial of a continuance to allow him 24 hours to prepare a
Regarding appellant’s contention of insufficient evidence, the
Supreme Court has held that:
[T]he requirements of due process are satisfied if some
evidence supports the decision by the prison disciplinary
board to revoke good time credits. This standard is met
if “there was some evidence from which the conclusion
of the administrative tribunal could be deduced.”
MCI v. Hill, 472 U.S. 445 at 455 citing United States ex rel Vajtauer v.
Commissioner of Immigration, 273 U.S. 103, 106. The Court went on to state that
“the relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board.” MCI v. Hill, 472 U.S.
445 at 455-56. Kentucky has adopted this standard in Smith. The record indicates
that the evidence used to discipline appellant was the written statements of both
deputies involved in the incident and the written statement of the inmate who
witnessed the incident. While appellant takes issue with the credibility of the
evidence presented, it is not for this Court to weigh the credibility of the evidence.
As there is evidence in the record, under the standard of review of “some
evidence” we hold that there was sufficient evidence to support the conclusion
reached by the Adjustment Committee.
Appellant argues that, because the charge was amended from
Category VII-1 to Category VII-4, he should have been granted a continuance to
prepare a defense to the greater charge. Appellant argues that this was an arbitrary
action by the state, and that constituted a due process violation. We are unable to
agree with appellant. The charge was amended to conform to the evidence in the
case. CPP 15.6(II)(B)(1)(b)(2) provides that “nothing . . . shall prohibit a charge
from being amended to conform to the evidence presented.” CPP
15.6(II)(B)(1)(b)(1) states that, if a charge is amended, a continuance shall be
granted if the Committee “is convinced the amendment shall alter the inmate’s
defense to the amended violation[.]” The record indicates that appellant received a
copy of the Disciplinary Report Form on October 13, 2006. This form stated that
both deputies had sustained minor abrasions during the incident. Appellant had
notice that the deputies had been injured. Furthermore, the same operative set of
facts supported both charges. Appellant has not demonstrated that he would have
defended the amended charge any differently or more vigorously had the
continuance been granted. The Committee was convinced that the amendment
would not alter appellant’s defense, and as there is some evidence to support this
finding, we agree.
Finally, appellant argues that his right to due process was violated
when he was denied the Adjustment Hearing tape. The Supreme Court has held
that “there must be a ‘written statement by the factfinders as to the evidence relied
on and reasons’ for the disciplinary action.” Wolff, 418 U.S. 539 at 564. The
record indicates that appellant received both Disciplinary Report Form Part I
(Write Up and Investigation) and Part II (Hearing/Appeal). This is sufficient to
satisfy the Wolff standard.
Appellant contends that he was entitled to a copy of the hearing tape
pursuant to CPP 15.6(G), which governs inmate access to hearing tapes. KRS
197.025 deals with restrictions on access to inmate records and appeal procedure.
In pertinent part, this statute states:
[N]o person shall have access to any records if the
disclosure is deemed by the commissioner of the
department or his designee to constitute a threat to the
security of the inmate, any other inmate, correctional
staff, the institution, or any other person.
The denial of appellant’s request stems from the fact that audiotapes are not
permitted within the segregation unit, pursuant to Kentucky State Penitentiary
(KSP) policy. Because KSP was not obligated to provide appellant a copy of the
audiotape under its own administrative policies, we hold that denying appellant
this tape did not violate his right to due process.
For the foregoing reasons, the judgment of the Muhlenberg Circuit
Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Anthony Petty, Pro Se
James D. Godsey