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COURT OF APPEALS
DECISION
DATED AND FILED
January 8, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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State of Wisconsin ex rel.
Darnell Jackson,
Petitioner-Appellant,
v.
Matthew J. Frank,
Respondent-Respondent.
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APPEAL
from an order of the circuit court for Dane County: c. william
Foust, Judge. Affirmed.
Before
Higginbotham, P.J., Vergeront and Bridge, JJ.
¶1 PER CURIAM. Darnell Jackson appeals from a
circuit court order that affirmed a prison administrative confinement decision
on certiorari review. We affirm for the
reasons discussed below.
BACKGROUND
¶2 Prison officials notified Jackson
that his ongoing administrative confinement was due for a six-month review
based upon a packet of materials that included a number of Jackson’s past conduct reports. Two of the conduct reports included charges of
which Jackson
had been found not guilty and one relied upon evidence from confidential
informants. Jackson asked to be able to question a
reporting staff member at the review hearing, but did not request any other
witnesses. The Administrative Confinement
Review Committee (ACRC) recommended continued placement in administrative
confinement, noting that Jackson had “established a pattern of negative
behavior and noncompliance” including having been found guilty on conduct
reports of Inciting a Riot, during which staff was seriously assaulted;
Possession of Intoxicants; Disruptive Conduct; Disobeying Orders; and multiple
instances of Disrespect. The ACRC
reasoned that “Jackson’s
disregard for institution rules and regulations and his inability to conform to
them are dangerous acts that threaten the overall security and safety of both
staff and other inmates within the institution.”
¶3 Jackson
appealed to the warden, who affirmed. He
then appealed to the Division of Adult Institutions (DAI) Administrator, who
referred the matter back to the warden on the grounds that Jackson had been in confinement for twelve
months by that time. After the warden
reaffirmed his decision, the DAI Administrator also affirmed. Jackson
next filed an Inmate Complaint Review System (ICRS) complaint seeking review of
the DAI Administrator’s decision. The
Inmate Complaint Examiner (ICE) directed that the matter be returned to the
hearing officer to check the “Other Testimony” box on the decision form in
recognition of the fact that the staff member requested by Jackson had in fact testified, and affirmed
as modified. Jackson appealed the ICE’s decision to the
Corrections Complaint Examiner (CCE), who recommended the ICRS complaint be
dismissed on its merits. The Secretary
of the Department of Corrections adopted the CCE’s recommendation as his decision
on April 4, 2007.
¶4 According to documents which were attached to the certiorari
petition, but were not included in the certiorari return, Jackson repeated the entire administrative
review process after the administrative confinement decision had been modified
as directed by the ICE. This ultimately
resulted in a second decision by the Secretary of the Department of Corrections
dated May 16, 2007. Jackson filed the present certiorari petition
on June 22, 2007, thirty-nine days later.
STANDARD
OF REVIEW
¶5 A motion to quash a writ of certiorari is akin to a motion to
dismiss, testing the legal sufficiency of the facts alleged in the
complaint. Fee v. Board of Review,
2003 WI App 17, ¶7, 259 Wis. 2d 868, 657 N.W.2d 112. Certiorari review is limited to considering
whether the record created before the committee shows that: (1) the committee stayed within its
jurisdiction; (2) it acted according to law; (3) its action was not
arbitrary; and (4) the evidence was such that the committee might
reasonably make the order or determination in question. State ex rel. Whiting v. Kolb, 158 Wis. 2d 226, 233, 461
N.W.2d 816 (Ct. App. 1990). The inquiry
into whether the committee acted according to law includes consideration of
whether due process was afforded and the committee followed its own rules. State ex rel. Curtis v. Litscher,
2002 WI App 172, ¶15, 256 Wis. 2d 787, 650 N.W.2d 43 (citing State
ex rel. Meeks v. Gagnon, 95 Wis.
2d 115, 119, 289 N.W.2d 357 (Ct. App. 1980)).
DISCUSSION
¶6 As a threshold matter, the State claims that Jackson’s certiorari petition is untimely
because it was not filed within forty-five days of the Secretary’s first
decision. See Wis. Stat.
§ 893.735(2) (2005-06);
State ex rel. Collins v. Cooke, 2000 WI App 101, ¶5, 235 Wis. 2d 63,
611 N.W.2d 774. It is not immediately apparent whether
that first decision would have been appealable as of right given the direction
that the original decision be modified.
However, since Jackson is ostensibly
seeking review of the Secretary’s second decision, and the exhaustion of
remedies documents attached to the petition show that prison officials
themselves directed Jackson
to engage in a second administrative appeal process following the modified
decision, we are not inclined to decide the present appeal on the basis that
the petition was untimely. In any event,
it is unnecessary to decide the timeliness issue because we conclude that Jackson’s petition fails
on its merits.
¶7 Jackson
raises four challenges to the extension of his administrative confinement. He claims: (1) the Secretary violated Wis. Admin. Code § DOC 303.85(2)
(Dec. 2006),
and thus denied him due process by considering conduct reports on which he had
been found not guilty of some charges; (2) the Secretary violated Wis. Admin. Code § DOC 308.04 and
thus denied him due process when by failing to follow the procedures for
consideration of confidential informant statements during an administrative
confinement proceeding; (3) the Secretary violated his due process rights
by refusing to provide him a copy of a videotape showing the riot which was the
subject of one of the conduct reports; and (4) the Secretary violated his
due process rights by failing to provide an adequate written explanation for
his decision. We will address each
contention in turn.
Conduct Reports With Dismissed Charges
¶8 Wisconsin Admin. Code § DOC 303.85(2)
provides:
The department may keep conduct reports which have been
dismissed or in which the inmate was found not guilty for statistical purposes,
and security reasons, but the department may not consider them in making
program assignment, transfer or parole release decisions ….
Jackson argues that this provision should
have prevented the department from considering the two conduct reports on which
he was found not guilty of some charges.
We disagree. Those conduct
reports were not “dismissed” in their entirety because Jackson was found guilty of other charges in
the reports. Moreover, the ACRC’s
decision specifically states that it “did not consider any dismissed conduct
reports or charges he was found not guilty of.”
The department was certainly entitled to consider any charges in the
conduct reports of which Jackson
had been found guilty.
Confidential Informants
¶9 Wisconsin Admin. Code § DOC 308.04(4) and (5)
provide procedures for the department to follow when a witness in an administrative
confinement proceeding is a confidential informant. Jackson
complains that the department failed to follow those procedures with respect to
the confidential informant statements underlying his riot conduct report. The problem with this theory is that the
informants did not testify or give any additional statements in the administrative confinement proceeding. Nor did Jackson
name them, even by their confidential informant designation, on his requested
witness list. Therefore, they were not
witnesses in the administrative confinement proceeding, and were not subject to
the procedures set forth in § DOC 308.04.
To the extent that the department indirectly relied upon confidential
informant statements by considering the riot conduct report, it was entitled to
do so because Jackson
had been found guilty of that charge. Jackson may not
collaterally challenge that finding of guilt or the prior use of confidential
informant statements within the context of the administrative confinement
proceeding.
Videotape of Riot
¶10 Jackson
contends that he had a right to see a copy of the videotape of the riot
underlying one of his conduct reports because it was evidence against him. However, there is nothing in the certiorari
record to support the contention that the videotape itself was introduced in the administrative confinement proceeding. Rather, the ACRC decision states that the
only physical evidence it considered was the inmate’s conduct record. Again, Jackson
may not relitigate the conduct report in the context of the administrative
confinement proceeding. The department
was entitled to rely upon Jackson’s conduct report for rioting — including any
references in the written materials to the evidence that supported that charge
— because the charge had not been reversed through administrative review or the
appellate process.
Written Decision
¶11 Finally, Jackson
contends that the ACRC failed to adequately articulate the reasons for its
decision. Wisconsin Admin. Code § DOC 308.04(8)
requires the reasons for the decision to be “based upon the evidence and given
to the inmate in writing.” Here, Jackson was provided with a written decision explaining that
the ACRC’s decision that Jackson
presented an ongoing threat to institutional security was based upon the
pattern of behavior established by his conduct reports, which were properly in
evidence. The decision satisfied the
administrative rule and due process.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.