Lowe v. Crabtree

Lowe v. Crabtree
1999 OK CIV APP 103
990 P.2d 320
70 OBJ 3495
Case Number: 91980
Decided: 06/03/1999
Mandate Issued: 11/08/1999

RELEASE FOR PUBLICATION BY ORDER OF COURT OF CIVIL APPEALS;
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I.

RONALD DEAN LOWE, Plaintiff/Appellant,
v.
MICHAEL CRABTREE and BOBBY BOONE, Defendants/Appellees.

APPEAL FROM THE DIRICT COURT OF ATOKA COUNTY, OKLAHOMA;
Honorable Doug Gabbard II, Judge.

AFFIRMED

Ronald Dean Lowe, Hominy, Oklahoma, Appellant, pro se,
Barbara C. Stoner, Oklahoma City, Oklahoma, For Appellee.

OPINION

JONES, Chief Judge

¶

¶

Should the litigant [Lowe] be forced to terminate the life of one of the

The litigant has been persecuted equally by both minority and

¶

¶

¶

¶

¶

¶

¶

¶

¶

¶12 HANSEN, P.J., dissents with separate opinion; ADAMS, J., concurs.

Carol M. Hansen (Dissenting)

¶1 I must respectfully dissent. The majority, as do Appellees in their appellate brief, ignore the definitive issue in this case, i.e., whether the evidence establishes Lowe committed the offense with which he was charged. Lowe's contention is not that he was denied procedural due process under Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2693, 41 L. Ed. 2d 935 (1974), but that his actions in writing the letter in controversy did not constitute an assault. I believe, under the facts and circumstances present here and for the reasons that follow, Lowe's conduct is not punishable as an assault.

¶2 It is clear the disciplinary officer who imposed punishment, and each of the reviewing officials, including the trial court, found punishment was appropriate solely due to a violation of offense number 05-2, assault. Nothing in the record indicates any official considered another offense, or that Lowe was informed any other offense was being considered. Notwithstanding Lowe's continuing protestations that his actions did not amount to assault, each official also failed to address this contention and unwaveringly adhered to the definition of assault set forth in the Department of Correction Policy and Operations Manual. However, that definition is incomplete and therefor inconsistent with our law.

¶3 Attachment A of the DOC Policy and Operations Manual lists 05-2 assault under the general category of Menacing offenses and then, somewhat parenthetically, adds the phrase, "any willful attempt or threat to inflict injury upon the person of another." This language is word for word identical to the first part of the definition of assault in Black's Law Dictionary (6th ed. 1990). The complete definition in Black's then, however, goes on to provide the other requisite elements of assault, as follows:

Any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do, and any intentional display of force as would give the victim reason to fear or expect immediate bodily harm, constitutes an assault. (Emphasis added).

¶4 It is unclear whether the Department of Corrections sought to redefine assault, or whether it was merely economizing space in its manual, but in either case, the result has been to provide fatally incorrect guidance to those involved in its disciplinary process. Appellees have not provided any legal authority, and I am aware of none, which would allow the DOC to give new meaning to a word of art which has been clearly defined by our Legislature and this state's highest court.

¶5 Black's definition of assault comports to our own law of assault, which is defined at 21 O.S. 1991 § 641 as "... any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another." The Oklahoma Court of Criminal Appeals has construed § 641to require that the offending actions must be "sufficient to cause a well-founded apprehension of immediate peril." Dunbar v. State, 75 Okla. Cr. 275, 131 P.2d 116 (1942). That Court also held in an early opinion it is not an assault to threaten by words, without an overt act or offer, or attempt to hit. Crilley v. State, 15 Okla. Cr. 44, 181 P. 316 (1919).

¶6 It seems axiomatic our law requires assault to be committed in the presence of the intended victim. It is equally clear the intended victim cannot form a well-founded apprehension of immediate peril if he or she is unaware of the threatening conduct. There is nothing in the record to show any potential victim of Lowe's threat was ever aware of it.

¶7 In Superintendent, Massachusetts Correctional Institution v. Hill, at 454, 105 S.Ct. [990 P.2d 323] 2768, the United States Supreme Court held, "[t]he fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact". In this case, there is no basis in fact to establish Lowe has committed an assault as that offense has been defined in this jurisdiction's law. The trial court erred in finding the involved Department of Corrections officials had acted properly. Crabtree and Boone were not entitled to summary judgment as a matter of law.

¶8 My views above should not be construed to hold Lowe is not subject to punishment if appropriately charged. I am keenly aware of the need to show deference to the opinion of prison administrators regarding how to maintain internal security. Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996). Such conduct as Lowe's letter here may be lawfully proscribed by corrections authorities, and I believe it comes under offenses already listed in the attachment to the Policy and Operations Manual. It is just not an assault.

¶9 I would reverse trial court's judgment and remand this matter for further proceedings consistent with my stated views.