Robert J. Worthon, Jr. v. Gerald Berge

�� COURT OF APPEALS

�� DECISION

�� DATED AND RELEASED

�� November 2, 1995

�� NOTICE

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See � 808.10 and Rule 809.62, Stats.

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.

No.� 94-1514

STATE OF WISCONSIN�� IN COURT OF APPEALS

�� DISTRICT IV��

��

STATE OF WISCONSIN EX REL.

ROBERT J. WORTHON, JR.,

�� Petitioner-Appellant,

�� v.

GERALD BERGE, Superintendent,

FOX LAKE CORRECTIONAL INSTITUTION,

�� Respondent-Respondent.

��

�� APPEAL from an order of the circuit court for Dodge County:� THOMAS W. WELLS, Judge.� Affirmed.

�� Before Eich, C.J., Dykman and Sundby, JJ.�

�� PER CURIAM.�� In a two-week period in 1993, Robert J. Worthon, Jr., received three conduct reports alleging several violations of prison disciplinary rules.� An adjustment committee found Worthon guilty.� The institution superintendent affirmed all but one of the committee's decisions.[1]� Worthon filed a petition for certiorari with the trial court.� The court upheld the superintendent's decision.� Worthon appeals, and we affirm.

�� The factual setting of two of the conduct reports is similar.� On two occasions, Worthon was found asleep in his bed at a time when he was scheduled for work.� When a guard directed Worthon to get up, Worthon refused.� Although Worthon explained to the guard that he was sick, he did not attempt to get a medical excuse from work.[2]�

�� Worthon first argues that his work assignment was improper and inconsistent with his medical condition.� The trial court held that argument was not properly before it and did not address it.� We agree with the court.

�� Judicial review in a certiorari matter is limited to four questions: (1) whether the adjustment committee exceeded its jurisdiction; (2) whether it acted according to the law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.� See State ex rel. Richards v. Traut, 145 Wis.2d 677, 679-80, 429 N.W.2d 81, 82 (Ct. App. 1988).� The propriety of Worthon's work assignment is not reviewable upon certiorari review of these conduct reports.[3]

�� Worthon argues that the adjustment committee did not adequately state the reasons for its decisions.[4]� An adjustment committee must state the reasons for its decision.� See State ex rel. Staples v. DHSS, 130 Wis.2d 308, 311-12, 387 N.W.2d 551, 552 (Ct. App. 1986).� Those reasons need not be lengthy or detailed, but a reviewing court must be able to understand them without resorting to speculation.� Id. at 312, 387 N.W.2d at 552.

�� We conclude that the adjustment committee stated sufficient reasons for its decisions.� Worthon does not dispute that he refused to get out of bed and report to work.� He also does not dispute that he did not try to get a medical excuse prior to these incidents.� The committee addressed Worthon's claimed justification for his conduct.� The committee's decisions were adequate.

�� Worthon next contends that the adjustment committee cannot rely on the conduct report as evidence of guilt.� Worthon is wrong.� An adjustment committee may rely on a conduct report when the only issue is whether the incident account in the report is more credible than a differing account offered by the inmate.� See Culbert v. Young, 834 F.2d 624, 631 (7th Cir. 1987), cert. denied, 485 U.S. 990 (1988).� Similarly, when the inmate does not dispute the account set forth in the conduct report, but rather attempts to "explain it away," the committee may rely on the report as a basis for its decision.

�� By the Court.�Order affirmed.

�� This opinion will not be published.� See Rule 809.23(1)(b)5, Stats.

�� [1] Worthon was found guilty of disobeying orders on three separate occasions and of violating institutional rules, all contrary to Wis. Adm. Code � Doc 303.24.� The superintendent dismissed the charge of refusing to work.� Worthon received a total of ten days in adjustment segregation and 210 days of program segregation.

�� [2] The third conduct report concerns Worthon's refusal to cut his fingernails which exceeded the length permitted under prison rules.� None of Worthon's appellate arguments relate to this conduct report, and we will not address it further.

�� [3] This court has upheld the dismissal of a disciplinary proceeding for disobeying an order when the underlying order was not authorized by Department of Corrections regulations.� See State ex rel. Anderson-EL v. Shade, 181 Wis.2d 348, 349, 510 N.W.2d 805, 805 (Ct. App. 1993) (inmate was ordered to submit to an unauthorized strip search).� These facts differ, however, since no one disputes the guards' authority to issue the orders.

�� [4] The adjustment committee's reasons for its decision in the first conduct report were: "Was awaken[ed] by Sgt. and told to report to work.� Inmate stated that he was not feeling well and did not report for his work assignment.� H.S.U. [Health Services Unit] states that he is moderate work."

�� The committee's reasons for its second decision were: "Inmate was ask[ed] to report to work but chose not to do so.� Even if not feeling well committee finds he could have dealt with this in a more responsible manner."