Herring v. Gorczyk

Herring v. Gorczyk  (2001-283); 173 Vt. 240; 789 A.2d 955

[Filed 21-Dec-2001]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2001-283


Christopher Herring                             Supreme Court

                                                On Appeal from
  v.                                            Rutland Superior Court


John Gorczyk	                                November Term, 2001


Richard W. Norton, J.
	
Matthew Valerio, Defender General, Seth Lipschutz, Prisoners' Rights
  Office, and Rebecca Boucher, Law Clerk (On the Brief), Montpelier, for
  Plaintiff-Appellee.

William H. Sorrell, Attorney General, Montpelier, and Douglas R.
  Marden, Assistant Attorney General, Waterbury, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J.   Inmate plaintiff filed a V.R.C.P. 75 petition for
  review of governmental  action challenging his conviction for a
  disciplinary rule violation.  Defendant, Vermont Department  of Corrections
  (hereinafter "DOC"), filed a motion for summary judgment.  The trial court
  denied  DOC's motion and granted summary judgment to plaintiff.  DOC
  appeals.  Because we hold that  plaintiff's due process rights at the
  disciplinary hearing were violated by the hearing officer's reliance  on
  statements of confidential informants without any independent assessment of
  the informants'  credibility, we affirm the lower court's decision.    

 

       Plaintiff is an inmate committed to the custody and control of DOC at
  Southeast State  Correctional Facility (SESCF).  Plaintiff was charged with
  a Major B#20 Disciplinary Rule violation  for "[p]ossession, introduction,
  or use of any alcohol, narcotics, depressants, stimulants,  hallucinogenic
  substances or marijuana."  A disciplinary hearing was held during which a
  hearing  officer reviewed: four unsworn reports authored by investigating
  officers concerning statements of  confidential informants, plaintiff's
  written statement, and an unsworn report by one investigating  officer
  summarizing the information contained in the confidential informant
  reports.  Under DOC  procedures, when confidential informant evidence is
  admitted at a disciplinary hearing, the hearing  officer must fill out
  "Appendix VI" forms.  These forms purport to encapsulate information 
  contained in the investigating officer's report, which in turn summarizes
  confidential informant  statements.  In keeping with procedure the hearing
  officer filled out four Appendix VI forms (FN1)  -  one for each
  confidential informant.  Each form identifies the investigating officer(s)
  who  interviewed the informant and requires the hearing officer to respond
  to the question: "[d]oes the  interviewer believe the confidential
  informant was a reliable source of information in the past?"  In  this
  case, the hearing officer responded affirmatively to the above question on
  all four forms.  Based  solely on the summaries of confidential informants'
  statements included in the investigating officers'  reports, the hearing
  officer found plaintiff guilty of a Major B#20 DR violation and sentenced
  him to  five days placement in disciplinary segregation, suspended for 30
  days for good behavior, and three  days loss of "good time."  No
  interviewing or investigating officer testified at the disciplinary 
  hearing. 

 

       Plaintiff timely appealed the decision to the SESCF Superintendent. 
  Among several  arguments, he claimed that "[t]he hearing officer did not
  make an independent finding of reliability  of the confidential statements
  against Mr. Herring."  The Superintendent denied the appeal, ruling  that
  "[t]here appears to be reasonable and credible information to lead one to
  conclude you were  guilty of the offense."  Plaintiff then filed a
  complaint pursuant to V.R.C.P. 75 challenging the  conviction.  Plaintiff
  argued below that DOC violated his due process rights (1) by providing 
  inadequate information from which to prepare a defense, and (2) because the
  hearing officer did not  make an independent finding of reliability of the
  confidential informants.  He advanced theories that  the confidential
  informants were likely acting out of retaliation, possibly jealousy, and
  that they were  possibly trying to deflect attention from their own drug
  trafficking activities.
 
       DOC moved for summary judgment claiming the investigating officers'
  reports contained  enough evidence to convict plaintiff by a preponderance
  of the evidence but, in the event the court  disagreed, the court need only
  find "some evidence," citing Superintendent v. Hill, 472 U.S. 445, 455 
  (1985), to uphold a prison disciplinary conviction.  Plaintiff opposed
  DOC's motion and disputed  certain facts asserted by DOC.  Specifically, he
  noted that contrary to DOC's assertion, there was no  lab report proving
  drug use.  Moreover, he argued that because diminished due process rights 
  available in prison settings require additional safeguards, it is necessary
  to independently establish  the reliability of confidential informant
  testimony and none of the confidential informant reliability  tests
  provided by Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir. 1985) had been
  met in this  disciplinary action. 

       The superior court granted summary judgment for plaintiff finding: 1)
  there was no lab report  in the record to support the Major B#20
  conviction; 2) there was no independent verification by the 

 

  hearing officer of the confidential informant testimony; 3) none of the
  reliability tests of Mendoza   were met and further, "[a] bald assertion by
  an unidentified person, without more, cannot constitute  some evidence of
  guilt."  Freitas v. Auger, 837 F.2d 806, 810 (8th Cir. 1988).  The DOC
  filed a  motion to reconsider asserting, among other claims, that the court
  erred in granting summary  judgment to plaintiff rather than doing an in
  camera review of the confidential information.  The  court denied DOC's
  motion, stating "no finding regarding credibility of informant was made by 
  [hearing officer].  Record does not support conviction."

       Summary judgment is appropriate, and the moving party is entitled to
  judgment as a matter of  law, when there are no genuine issues of material
  fact.   Madden v. Omega Optical, Inc., 165 Vt. 306,  309, 683 A.2d 386, 389
  (1996).  Upon review of a grant or denial of summary judgment this Court 
  applies the same standard as the trial court.  White v. Quechee Lakes
  Landowners' Ass'n., Inc., 170  Vt 25, 28, 742 A.2d 734, 736 (1999).  On
  judicial review of the sufficiency of evidence at a prison  disciplinary
  hearing, the hearing officer's final determination must be upheld if it is
  supported by  "some evidence" in the record. See LaFaso v. Patrissi, 161
  Vt. 46, 49, 633 A.2d 695, 697 (1993); see  also Hill, 472 U.S.  at 455
  ("some evidence" standard is the appropriate standard for judicial review 
  of the actions of prison authorities).  To determine whether the "some
  evidence" standard is met, "the  relevant question is whether there is any
  evidence in the record that could support the conclusion  reached by the
  disciplinary board." Hill, 472 U.S.  at 455-56.  "[T]he 'some evidence'
  standard may be  met even where the only evidence was supplied by a
  confidential informant, as long as there has been  some examination of
  indicia relevant to [the informant's] credibility."  Gaston v. Coughlin,
  249 F.3d 156, 163 (2nd Cir. 2001) (internal quotations and citations
  omitted).  As noted by the Second Circuit  in Russell v. Scully, 15 F.3d 219, 223 (2d Cir.  1993), due process requires more than "wholesale
  reliance upon a third party's evaluation of that  credibility." 

       In Mendoza the Seventh Circuit wrote: "[t]o protect the inmate's
  interest in a fair hearing, our  court requires some indication of the
  reliability of confidential informants when confidential  information is
  the basis for a prison disciplinary decision."  779 F.2d  at 1293.  It then
  set out four  ways the reliability of a confidential informant may be
  established: (1) by oath of the investigating  officer as to the truth of
  the report containing information and his appearance before the
  disciplinary  committee; (2) corroborating testimony; (3) a statement on
  the record by the chairman of the  disciplinary committee that he had
  firsthand knowledge of the sources of information and considered  them
  reliable on the basis of their past record of reliability; or (4) in camera
  review of material  documenting the investigator's assessment of the
  credibility of the confidential informant.  Id.  While  not an exclusive
  list, none of these reliability tests were met in this case.

       On the first Mendoza factor, the investigating officers neither swore
  to the validity of their  reports, nor appeared before the hearing officer. 
  On the second Mendoza factor, the DOC claims the  existence of multiple
  inculpatory reports by confidential informants renders them "self-
  corroborating" and thus reliable under the second test.  This reasoning is
  obviously flawed. 

       In a prison environment, where authorities must depend
       heavily upon  informers to report violations of regulations,
       an inmate can seek to  harm a disliked fellow inmate by
       accusing that inmate of wrongdoing.  Since the accuser is
       usually protected by a veil of confidentiality that  will not
       be pierced through confrontation and cross-examination, an 
       accuser may easily concoct the allegations of wrongdoing. 
       Without a  bona fide evaluation of the credibility and
       reliability of the evidence  presented, a prison committee's
       hearing would thus be reduced to a  sham which would
       improperly subject an inmate accused of  wrongdoing to an
       arbitrary determination. 

 

  Kyle v. Hanberry, 677 F.2d 1386, 1390 (11th Cir. 1982).

       These risks are not necessarily decreased simply because there are
  four inmates making a  report as opposed to just one.  Four inmates may be
  similarly motivated to concoct a falsehood or  may act in collaboration. 
  Reliance on the mere fact that there are four reports, instead of one, or 
  even two, does not negate the risk inherent in this type of testimony. 
  Absent some additional,  specific, independently-corroborated indicia of
  testimony included in those reports, they do not  satisfy the second
  Mendoza test. 

       But it is the third reliability test identified in Mendoza that proves
  particularly fatal for the  DOC in this case.  See 779 F.2d  at 1293
  (confidential informant reliability may be established by a  statement on
  the record that the decision-maker made an independent assessment of
  informant's  reliability).  There is no statement or finding by the hearing
  officer that he considers the confidential  informants reliable.

       The requirement that there be some independent assessment of a
  confidential informant's  reliability is rooted in the basic procedural due
  process right to confront and cross-examine  witnesses.  Recognizing,
  however, that the rights and privileges of one lawfully imprisoned may be 
  diminished by the needs and exigencies underlying our penal system, "mutual
  accommodation  between institutional needs and objectives and the
  provisions of the Constitution" necessitate a  delicate balancing of these
  competing interests.  Wolff v. McDonnell, 418 U.S. 539, 556 (1974).   The
  government interest in preserving institutional order, discipline and
  safety is balanced against a  prisoner's rights to call, confront and
  cross-examine witnesses.  Preserving institutional order and  safety is
  "especially implicated" when inculpatory information is provided by
  confidential informants  because, "revealing the names of informants . . .
  could lead to the death or serious injury 

 

  of some or all of the informants."  McCollum v. Miller, 695 F.2d 1044, 1048
  (7th Cir. 1982).  The  prisoner's right to confront adverse witnesses may
  thus be permissibly circumscribed, and even  denied, if exercising these
  rights would be "unduly hazardous to institutional safety or correctional 
  goals."  Wolff, 418 U.S.  at 566.  However, when usual due process rights
  are pared away in favor of  prison security interests, other safeguards
  become all the more necessary.  McCollum, 695 F.2d  at  1048.  A prisoner
  has a constitutionally protected interest in disciplinary hearings that are
  "not so  lacking in procedural safeguards that they create substantial
  doubt that these prisoners committed the  offenses for which they were
  disciplined."  Jackson v. Carlson, 707 F.2d 943, 948 (7th Cir. 1983). 

       An independent assessment of confidential informant reliability is one
  such safeguard against  infringement of an inmate's procedural due process
  rights.  See, e.g., Taylor v. Wallace, 931 F.2d 698, 702-03 (10th Cir.
  1991); Freitas v. Auger, 837 F.2d 806 (8th Cir. 1988); Hensley v. Wilson,
  850 F.2d 269, 276-77 (6th Cir. 1988); Henderson v. Carlson, 812 F.2d 874,
  879-80 (3rd Cir.), cert denied  484 U.S. 837 (1987); Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir. 1985); Dawson v. Smith,  719 F.2d 896, 899 (7th
  Cir. 1983); Kyle v. Hanberry, 677 F.2d 1386, 1389 (11th Cir. 1982).

            It is hardly debatable that a prison disciplinary
       committee  charged with the responsibility of finding facts
       for the  purpose of determining whether there is some
       evidence to  support an allegation that an inmate is guilty
       of a disciplinary  violation must assess both the sufficiency
       of the evidence and  the credibility of the witnesses who
       provide it. 

       . . . .  

            In cases in which prisoner misconduct is found upon 
       evidence consisting entirely, or even substantially, of the 
       statement of an investigating officer that he has been told
       by  confidential informants that the misconduct occurred, and
       that  the investigator believes the 


 

       informant to be  reliable, there must be some independent 
       determination by the committee of the informant's
       reliability. 


  Hensley, 850 F.2d  at 276. 

       In Hensley inmates appealed a disciplinary committee's determination
  of guilt which was  based "almost entirely" on the strength of information
  provided to prison investigators by  confidential informants.  See id. at
  271. In reaching its determination, the disciplinary committee  relied on
  the investigator's unsworn written report which apparently contained the
  investigator's  conclusions, based on the information supplied by the
  informants, that the plaintiffs were guilty of  the misconduct charges
  against them.  Id.  "The only reference in the disciplinary committee
  findings  as to the reliability of the informants is that the investigating
  officers 'testified' that the confidential  'information given them is
  reliable,' or that 'their source of information is reliable.' " Id. at 272. 
  In  short, there was no "committee finding that either the confidential
  informants or their information  was determined by the committee to be
  reliable."  Id.; see also Kyle, 677 F.2d  at 1390 (footnote  omitted)
  ("[W]here the committee's determination is based upon hearsay information
  derived from  an unidentified informant, minimum due process mandates that
  the IDC (Inmate Disciplinary  Committee) undertake in good faith to
  establish the informant's reliability.").


       This case concerns a conviction of a disciplinary violation based
  solely upon confidential  informant allegations as reported by
  investigating officers.  And, as in Hensley, there is no  independent
  finding by the hearing officer of the reliability of those informants.  The
  only assessment  of the confidential informants' reliability in this case
  was made by the officers who interviewed the  informants for this
  investigation and never testified under oath at the hearing.  Question #7
  of  Appendix VI asks:  "[d]oes the interviewer (the officer who interviewed
  the 

 

  confidential informant) believe the confidential informant was a reliable
  source of information in the  past?"  The hearing officer answered
  affirmatively, that in all four cases, the interviewer did believe  the
  confidential informant was a reliable source of information in the past. 
  In response to the second  part of Question #7 which asks "why," the
  hearing officer noted the following reasons for the  interviewing officers'
  beliefs: "prior information was used in past and proven credible/reliable," 
  "given reliable information in past," "information was used in the past and
  proven reliable" or  because the belief was "based upon credible evidence
  in the investigation."  However, nowhere on  the Appendix VI forms does the
  hearing officer himself make a independent finding that either the 
  confidential informant or his information was determined by him to be
  reliable.    

       As the Sixth Circuit acknowledged in Hensley, 

       [r]eliance upon an investigating officer's statement that an
       informant  is reliable is not necessarily a fatal procedural
       flaw, but if the  committee does not discover, and assess,
       the investigating officer's  basis for concluding that the
       informant is reliable, it cannot be said  that the committee
       has made reasoned choices about the truth of the  information
       provided to it, as minimum due process requires it to do.
 
  Hensley, 850 F.2d  at 277 (emphasis in original).  Such information would
  allow the finder of fact "to  come to a reasoned conclusion that the
  informant is reliable and therefore, that the story he has  related to the
  investigating officer is likely to be true."  Id.  

       Assuming arguendo that the reasons noted by the hearing officer do
  provide support for why  the interviewer believed the confidential
  informant was a "reliable source in the past," that does not  satisfy the
  due process requirement that the hearing officer independently assess
  confidential  informant reliability and make a finding on that issue. 
  Here, the hearing officer was "merely  recording the findings made by the
  investigating officer who has made a determination about the 

 

  informant's reliability, without making any determination for itself about
  the informant's reliability or  even the basis for the investigator's
  opinion that the informant is reliable.  To proceed in that fashion  is not
  fact finding.  It is recordkeeping."  Id. at 276.  

       The last reliability test proposed in Mendoza is an in camera review
  of material documenting  the investigator's assessment of the credibility
  of the confidential informant.  See 770 F.2d  at 1293.   In this case, even
  if we assume the hearing officer reviewed such materials in conjunction
  with the  investigating officers report, there has simply been no finding
  of reliability.  The DOC, in its motion  to reconsider, asked the court to
  perform an in camera review of the investigating officer's  confidential
  reports upon which the hearing officer compiled his Appendix VI
  determinations.  In  effect, DOC asked the Superior Court to do what the
  hearing officer was obliged, yet failed to do - make a finding as to the
  confidential informant's reliability.  Because V.R.C.P. 75 proceedings are
  in  the nature of certiorari the parties cannot expand the findings on
  review.  See Reporter's Notes,  V.R.C.P. 75.  The failure of the hearing
  officer to make the requisite findings cannot be rectified by a  court's in
  camera review of facts and information not in the record. 

       The trial court's denial of DOC's motion for summary judgment was
  based in part on the  absence of any lab report in the record.  Because
  resolution of whether or not an inmate's Major  B#20 conviction must be
  supported by lab reports is inconsequential to our holding today, we will 
  not address DOC's arguments on that issue and its contention that physical
  evidence is not required  to support a Disciplinary Rule conviction.

       DOC argues that because prison officials must be afforded "wide
  ranging deference" in the  adoption and execution of policies and practices
  that in their judgment are necessary "to preserve  internal order and
  discipline and to maintain institutional security," this Court must defer
  to the  DOC's practice regarding its evaluation of the reliability of
  confidential informant testimony.  In  matters of policy and procedures we
  agree that great deference should be shown agency  administrators.  We will
  not, however, defer to a procedure that violates constitutional rights.   

       A prisoner's due process rights may be permissibly circumscribed and
  properly balanced in  order to effectuate the goals and proper
  administration of a penal institution.  Yet what remains of  the prisoner's
  due process rights may not be dismissed absent a more compelling
  justification.  So  while the "full panoply of rights due defendants" in a
  criminal prosecution do not apply to  disciplinary actions, "a prisoner is
  not wholly stripped of constitutional protections when he is  imprisoned
  for a crime."  Wolff, 418 U.S.  at 556.  Absent an independent finding of
  confidential  informant reliability, there is no evidence to support the
  hearing officer's determination. 

       We affirm the trial court's denial of defendant's motion for summary
  judgment and order the  DOC to expunge the disciplinary conviction of July
  13, 2000 and restore any good time credits lost.

       Affirmed.


FOR THE COURT:



_______________________________________
Associate Justice

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                                  Footnotes

FN1.  In the Disciplinary Hearing Report filed by the hearing officer
  he states that his  determination was "[b]ased upon Appendix IV -
  Confidential Informant Statements/Testimony."  We  will assume, as all
  parties to this appeal have assumed,  that the hearing officer intended to
  write  "Appendix VI," and not "Appendix IV," as there is no such appendix
  at issue in this appeal.