TERENCE SIAS VS LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS SECRETARY
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0112 TERENCE SIAS VERSUS DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS SECRETARY 0 Judgment Rendered December 28 2006 On Appeal from the19th Judicial District Court In and For the Parish of East Baton Rouge Trial Court No 533 357 Division Honorable Wilson Fields Terence Sias DeQuincy LA 0 Judge Presiding Plaintiff Appellant In Proper Person Debra A Counsel for Defendant Baton Richard Stalder Rutledge Rouge LA Appellee BEFORE PETTIGREW DOWNING AND HUGHES JJ HUGHES J Plaintiff Terence Sias appeals dismissing his claims with prejudice from judgment of the district a For the following reasons court we reverse and remand with instructions I FACTS AND PROCEDURAL HISTORY This the C case involves an incident that occun operated by the Department of Public Safety and DPSC At Baccigalopi entered dorm shower motion notified sic penis masterbating sic On of the one prison s dorms to Mr permitted by the Rules witnesses staring directly at me Kan ie up saw some into the in the shower with his right hand moving in 2 2005 Sias moved DPSC and the prison an smiling to disciplinary up and down Sgt Baccigalopi was Disciplinary Rules l Procedures report the board decided to handcuffed sex hearing his behalf that a as s a rebuttal of Sgt Baccigalopi s Mr stipulate the witnesses expected testimony offense on Sias determining After to in a and Procedures for Adult Inmates the DPSC Rules and Procedures guilty of aggravated board held present witnesses testimony would be limited permitted by pick Sgt Baccigalopi apparently in his prison custody February the incident I of lieutenant of the incident after which Mr Sias a and taken into DPSC an area a Sergeant a m and viewed inmate Terence Sias area erected exposed 2005 at Janumy 29 Conections for the State of 7 30 approximately From where she stood supplies on Phelps Conectional Center in DeQuincy Louisiana Paul Louisiana ed as The board found Mr Sias violation ofDPSC Rule 2l which reads the right to present evidence and witnesses in his behalf and to request cross examination provided such requests are relevant not repetitious not unduly burdensome to the institution or not unduly hazardous to staff or inmate safety DPSC Rules and Procedures p 8 2 DPSC Rules and The Board has the option of stipulating expected testimony from witnesses An inmate has of the accuser Procedures p 8 2 in No inmate shall pertinent part and or masturbate in view of DPSC Rules and Procedures contents of report time credit good Sgt Baccigalopi Sias Mr 3 the officer s and that the inmate s CARP only s less time served in not was appealed present to at the hearing and did the 19th August 25 2005 the district After a careful de denying occun Both 15 1177 A In ed testify appeals Remedy Procedure Judicial District Comi comi more days forfeiture of the prison warden and the DPSC in Louisiana Revised Statutes appealed for review by be to defense is not the that the offense custody since organs their families as reasons The board sentenced Mr Sias to l80 specified as or version is determined Pursuant to the Criminal Administrative failed on The board gave 19 p repOli is clear and concise credible than the inmate employee visitor guest an genital expose the deliberately a Act Mr Sias judgment signed judge luled consideration of the entire record novo herein together with any traversal timely filed and the Court adopting as reasons the Commissioner s Report filed herein IT IS ORDERED ADJUDGED judgment is rendered affirming dismissing this suit with prejudice Mr Sias has now to appealed primary issue for review whether present evidence and witnesses witnesses on behalf his and adoption of the Commissioner Baccigalopi 3 These reasons and s are on to Mr Sias also disciplinary board Constitution an the DPSC conduct in standard 23 with check boxes to be to s completed by the at this Plaintiff s presenting court inmate has his cross own and Rules the behalf his to cross accuser to the and form and are provided to examine before comi a s United States whether him violated DPSC Rule 3 right whether the district Procedures disciplinary report hearing officer following constitutional a examine questions cost RepOli is contrary reporting the DPSC s DECREED that the Department s decision AND on 10 Sgt which the form in item forbids knowingly making false important facts on official reports statements deliberate or omISSIOn of documents or II LAW AND DISCUSSION A Constitutional Due Process Standards for Department of Corrections Disciplinary Hearings Sias argues that the Mr Amendment and due process extend the rights witnesses including concerns proceedings are s concerns an 539 556 Morrissey v in nature essentially administrative 94 S Ct 2963 Brewer 408 U S 2975 471 41 488 cross examine As prison disciplinmy not apply Wolff v not to disciplinary hearings claims under the Sixth Amendment civil thus the Sixth Amendment does U S under the F omieenth Amendment inmate to accuser of the Sixth protections present evidence and witnesses and to Mr Sias constitutional L Ed 92 S criminal even McDonnell 418 2d 935 Ct 2593 or 1974 citing 22 L Ed 2d 484 1972 Mr Sias case s due process concerns are that while the condition of lawful he is rights process not wholly without Id at 555 Mr Sias a Supreme Court has will not Id at 566 right s notes in his brief that the loss of administrative held procedure can deprive process as an the Id at 556 57 to call witnesses documentary evidence in his defense when permitting him to do In Wolff the Court held that so prisoner a of the Constitution and due liberty interest without sufficient procedural due United States and present for while it is the protections ectly an matter imprisonment diminishes con good time credits resulting from inmate of the another be unduly hazardous Justice to an inmate has the institutional Byron White specified and also noted that a safety right ectional or con the limited nature of this prison disciplinary authority need 4 goals particular not state the for refusal to explanation would be reasons board s refusal to allow inmate an Id useful allow Mr Sias due process violation as to call witnesses In the although such at bar case the introduce witnesses does to the board announced stipulating the witnesses expected testimony on disciplinary not amount to the record that it Mr Sias on s an a was behalf in lieu of their appearance Mr Sias argues that the board Finally examine and confront process violation hazards greater recrimination rights than the in rights cross hearing amounted to a in the criminal defense context institutional to right to constitutional due process does these to to The Wolff Court detennined that confrontation and examination while crucial even allow him refusal the at Sgt Baccigalopi s call hearing proceedings Id witnesses require not interests disciplinary a disciplinary board the board in the as case We thus conclude that the DPSC Rules and Procedures board in Mr Sias disciplinary Mr Sias discuss to s court once this matter on FebIumy concerns Mr Sias Evidence Standards in questions whether disciplinmy hearing violated proceedings For instance from those hearsay testimony like by the and will implicated as the section of CARP that board the DPSC Rules required used not sphere and moved became Disciplinary the In the administrative generally relaxed to allow adjudications for judicial review of inmate B as as Thus bar did however left the administrative additional due process such 2 2005 did not violate We note rights in Louisiana Revised Statutes 15 II 77 provided provides hearing constitutional due process infra that district s at cross present 567 at due context s Context management the rules of evidence or ections officer 5 his and Procedures for such in either criminal a con of civil s are proceedings written incident report will generally be admitted See Chaisson Co 708 97 l225 II p La Revised Statutes 49 probative effect 3 4 98 states 1 956 So 2d 375 that accepted by reasonably pIudent men acknowledge he t to to right 382 gencies Also may that require her enumerated or an Louisiana admit and value probative Supply give commonly 4 inmate be informed rights including present evidence and witnesses in his behalf and cross request of his awareness Cajun Bag in the conduct of their affairs The DPSC Rules and Procedures and a evidence which possesses to v examination of the The Board has accuser stipulating expected testimony from witnesses In such a case the Board should assign proper weight to such The testimony as though the witness had actually appeared accusing employee must be summoned when the report is 5 based solely on information from Confidential Informants the option of Mr Sias read his witnesses acknowledged rights and that rebut to the board decided well provided give Sgt Baccigalopi to on stipulate s that of proper weight participation solely on in an witnesses call to Using its prerogative expected testimony as The deliberations Sgt Baccigalopi to both sides of the story before s version deciding was more number of as an pOliion of the above accusing employee inmate must quoted as allowed credible than Mr reasons have Rule that the be present and only subject to disciplinary hearing is when the report is based infonnation from confidential informants policy proceedings differently been advanced for treating which evidentiary clearly was issues not in administrative ofthe disciplinary the most pertinent in this inquiry being specialized as inmates See Frank L Maraist Louisiana factfinder and the participation of nonlawyers such Civil Law Treatise 5 He then moved s instance in which board s that he had been the audio record while scanty suggest that the board did indeed It is noted in another 4A hearing written repOli Mr Sias within its discretion that the officer Sias his he understood them it may be infen ed as at the outset of on the Evidence and Proof g 1 2 DPSc Rules and Procedures p 8 6 nature the case accuser Mr Sias argues that here is automatic when the inmate an to right plead cross sic not Jurisprudence rule in any cOUli of the United States Sias be seems here to in the administrative the The not context provision including Sias s Sias was the present against or the board s The Mr s to a criminal 6 Evidence an Board shall carefully recording of Mr The audio deliberations which OCCUlTed while Mr provision Sias contain Disciplinary those deliberations indicate that the when it weighed Sgt Baccigalopi testimony and that of his witnesses The board officer presiding at the stipulated Mr disciplinary proceedings also stipulated Although brief board did indeed heed this written repOli examination afforded Procedures following presented hearing contains not cross and Rules evaluate all evidence Unfortunately a As noted above from the discussion of Wolff extend into the realm of inmate DPSC This is guilty confusing criminal procedure requirements with those rights of confrontation and defendant do examination sic the s as hearing stated she observed this inmate in the doubt penis in his right hand moving up and directly at her and smiling the repOli is She doesn t have a shower with his erect down and staring and clear precise than the inmate the s and the officer his s version is only defense is to credible more deny the contents of report Recording Disciplinary Hearing of Audio Terence Sias Feb 2 2005 We conclude thus that the disciplinary board adhered to of evidence contained in the DPSC Rules and Procedures hearing 6 no the standards at Mr Sias s violation OCCUlTed require inmates to make any appropriate While waived Rules and Procedures p 9 motions at the outset ofthe hearing or they will be considered at the proper time he did not also request to cross examine Mr Sias moved to call witnesses on his behalf It should also be noted that the DPSc Rules and Procedures Sgt Baccigalopi issue on appeal as but the would have been his right This omission sheds doubt on Mr Sias s ability to raise have addressed it here in order to respond completely to the issues presented by Mr we Sias 7 C Judicial Review Mr Sias Commissioner 25 August to the s alleges that the district RepOli and adopting its seeking to traversal filed Baccigalopi own where Mmiin in the s 2005 Mr Sias August 16 on He attached termination Sgt Baccigalopi alleged Finally judgment signed The termination that this credibility in additional in his attempts s to the issue provide Sias s requests an In his inmate informed the of cOUli by another inmate Sgt to his report of an incident similar Ronald Hose Ovado and Kodd inquiries and it similar that may have led s an to appears Sgt Baccigalopi claims in the traversal and sheds doubt were on s appeal Sgt Baccigalopi on s We agree not reflect that the credibility and s to information supplement Baccigalopi or a again violation a of Mr Sias own case The record does Sias proceedings essence on Mr Sias wrote June 20 2005 Mr Sias named additional inmates subsequently cleared the accepting petition with newly discovered evidence amend his Huntley who had also been subject an in en Sgt Baccigalopi had been fired for misconduct with that is on District Court ed court reasons The record reflects that 2005 court by the Nineteenth Judicial the express district cOUli responded the record with evidence August reason 25 2005 impugning Sgt judgment does for its decision to Mr not to not discuss entertain Mr Our review of the record suggests that this may amount to abuse of discretion such that Mr Sias has been denied sufficient due process Louisiana Revised Statutes 15 11 77 review provisions of CARP provides that decision of the agency or remand the that additional evidence be taken for the which pmiies to case 8 he occurs The judicial affirm the proceedings 15 1177 8 at forth the cOUli may for further LSA R S present evidence t sets or order opportunity the administrative level Lightfoot v Stalder 2000 1120 p upon conditions determined This court has additional evidence Samuels 2534431 172 v at on least Gryder 2005 1231 Peralla v Hebert unpublished cited in 4 p court to return 2986 La 8 31 00 a DPSC case State ex fair light of s must be taken in order We evidence to the Louisiana court s failure reI Robinson v to s brief convinces ensure s Mr Sias s 7 as Sias he was to order 1999 complaint us is that that to suspect in wrongly repOlied concerning other conclude that Mr Sias has investigation into to apparently already Sgt Baccigalopi s credibility act we at 7 issue find that further report when she entered the shower area and saw Mr of masturbating and his erected penis was already visible Sgt Baccigalopi in the an presented sufficient potential guided by the CARP statutory scheme according a Sgt light of her alleged termination for misconduct with merit further We also note that Supreme rights Accordingly in light of the possible due process violations and 1 App Cain 2005 incident may be January 29 similar incidents she may have inmate 686 So 2d The heart of Mr Sias version of the inmates and also in 1 Cir 11 8 96 766 So 2d 1268 disciplinmy proceeding Baccigalopi jurisprudence 2006 WL case Our review of the record and Mr Sias additional evidence DPSC for 1 9 06 district a recent to 97 CA 2175 p 2 La In another Court has found abuse of discretion in fuIiher evidence in App Hebert v accomplished a case 1 Cir App La 96 0264 La Peralla If the court occasions in two 722 So 2d 313 314 Cir 116 98 823 So 2d 957 LSA R S 15 1177 4 court the district required 808 So 2d be taken such shall be must by the 1 Cir 6 22 01 App La 8 30 02 710 715 writ denied 2001 2295 decides that additional evidence La 6 s quoted above But it be either masturbating is also tlle case that tlle Rule requires the illlllate exposing himself If Mr Sias was in fact already engaged in his actions when Sgt Baccigalopi entered tlle deliberately shower area and saw him he may not have acted deliberately toward her and his intent may be an issue subject to reconsideration Exposure ofthe genitals and masturbating are the two elements ofDPSc Rule to 9 21 as or proceedings review are required procedure for a more thorough exercise of the administrative We thus remand for the district court to order that If Mr Sias is not satisfied additional evidence be taken by DPSC response he receives he may by the again seek judicial review CONCLUSION The judgment of the district dismissing petitioner s suit with cOUli affinning the prejudice DPSC is reversed remanded to the district court with instructions to remand the proceedings decision and This case matter is for further in order that additional evidence be taken in accordance with Louisiana Revised Statutes amount s 15 1177 A of 475 08 will be assessed 8 Costs of this appeal in the against Defendant the State of Louisiana through the Depmiment of Public Safety and Conections REVERSED AND REMANDED WITH INSTRUCTIONS 10
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