Straley v. Galetka

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Robert Dale Straley,
Petitioner and Appellant,

v.

Hank Galetka, Jack Ford, H.L. Haun,
Tim Parker, and Dan Tingey,
Respondents and Appellees.

AMENDED
MEMORANDUM DECISION(1)

(Not For Official Publication)

Case No. 20000083-CA

F I L E D

November 8, 2001

2001 UT App 336

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Third District, Salt Lake Department

The Honorable Leslie A. Lewis
 

Attorneys:

Robert Dale Straley, Draper, Appellant Pro Se

Mark L. Shurtleff and Sharel S. Reber, Salt Lake City, for Appellees

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Before Judges Greenwood, Billings, and Thorne.
 

PER CURIAM:
 

Appellant Robert Dale Straley, proceeding pro se, appeals the district court's denial of his petition for extraordinary relief. Although he does not specify what provision he relies upon, his petition fits under Rule 65B of the Utah Rules of Civil Procedure, which deals with conditions of confinement. Straley claims his rights were violated by allowing another inmate, who had a physical altercation with Straley, to have a copy of the report pertaining to that incident. Straley further argues that his rights were violated by the prison's refusal to move him to a county jail as a result of the release of information.
 

On May 23, 1998, a fight occurred between Straley and another inmate. Straley was injured and bloodied in the fight. He went to the control room window and waited to draw the attention of a guard. Subsequently a guard took Straley's statement about what had taken place. Straley indicated that he
was not concerned for his safety. Nevertheless, the guards moved Straley to a different cell block to ensure Straley's safety. Some time later, pursuant to a disciplinary action, a copy of the report was given to the other inmate for use in defending himself in the disciplinary action. Straley believed his safety was put at risk by the release of the report and he was moved to a type of protective custody. Straley contends that he should have been moved to the Carbon County jail.

Straley's petition was set for hearing, which was held on February 2, 2000. Prior to the hearing, the trial judge asked the State to determine if Straley would be eligible to be moved to the Carbon County jail. The State presented testimony that Straley did not qualify for placement in Carbon County for three reasons: First, the nature of his conviction, sexual abuse of a child; second, because he had some write-ups (prison violations) within the last twelve months; third, because counseling for sex offenders is not available to Carbon County jail inmates, and failure to participate in counseling can delay parole. Witnesses, including the Deputy Warden, testified that the release of the incident report was not in violation of prison policy because (1) Straley's statement was not considered informant information because he was not providing information that would otherwise be unknown to the guards, and (2) the other inmate was entitled to the information to represent himself in the disciplinary hearing. The trial judge dismissed the petition after concluding that Straley has no constitutional right to transfer to a particular facility and that the release of the information was within prison policy.

When the State creates a right it must afford appropriate due process to ensure the protection of that right, even for inmates. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963 (1974) (requiring minimal due process in revocation of parole and good time revocation where the state had enacted a statute which afforded a right). However, absent a state-created right, an inmate has no constitutional right to be placed in a particular prison. See Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532 (1976); see also Olim v. Wakinekona, 461 U.S. 238, 103 S. Ct. 1741 (1983). The inmate's right to liberty is sufficiently extinguished, upon conviction, that a state is free to house him in any of its prisons. The fact that conditions in one facility may be worse than another does not, in itself, implicate Fourteenth Amendment liberty. Meachum 427 U.S. at 224-25, 965 S. Ct. At 2538. The "touchstone of due process" is to protect the individual from the arbitrary act of the government, to ensure the state-created right is not "arbitrarily abrogated." Id. at 226, S. Ct. at 2539. In this case, the State has created no right of transfer for an inmate to local county jails. The State has contracted with the jails to house inmates on a case by case basis depending on availability and whether the inmate meets certain criteria. The measure of protection afforded an inmate who is concerned for his safety is provided by moving him to a different tier or placing him in a sort of protective custody which isolates the inmate from the other inmates to avoid the threat. The prison followed its procedures for security in moving Straley and cross-referencing he and the other inmate on the computer to avoid housing them in the same area.

Because there is no constitutional right to housing in a particular facility, the fact that the incident report was released to the other inmate does not create such a right. The prison followed its procedures in classifying the report and determining that Straley did not qualify as a confidential informant; therefore, there was no due process violation in the release of the report. Straley also has not demonstrated how the Carbon County jail would be any safer. In fact, the evidence was to the contrary in that the county jails lack certain technology and staffing to handle problems with inmates. The prison also protected Straley by allowing him to remain where he could receive sex offender therapy that would make him eligible for parole sooner.

Straley alleges for the first time on appeal that the judge was "rude" and biased. Generally a claim will not be considered for the first time on appeal. See State v. Helmick, 2000 UT 70, 9 P.3d 164; State v. Gibbons, 740 P.2d 1309 (Utah 1987). Here Straley alleges that the judge made particular statements. However, the statements Straley attributes to the judge are not contained in the record. Therefore, this claim is without merit.

We affirm the district court's dismissal of the petition.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. This Amended Memorandum Decision replaces the Memorandum Decision in Case No. 20000083-CA issued on October 12, 2001.