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COURT OF APPEALS DECISION DATED AND RELEASED November 16, 1995 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1986
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN EX
REL.
DINO L. MCQUAY,
Plaintiff-Appellant,
v.
GARY R. MCCAUGHTRY,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Dodge County:
Thomas W. Wells, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. Dennis McQuay appeals from a circuit court order
affirming an order of the Waupun Correctional Institution Adjustment
Committee. The committee found McQuay
guilty of a major conduct infraction for violating Wis. Adm. Code §§ DOC 303.24 and 303.28 (disobeying
orders and disruptive conduct). For the
reasons set forth below, we affirm.
BACKGROUND
On August 1, 1993,
McQuay was waiting in line for lunch at the prison cafeteria. The parties disagree on what happened
next. McQuay alleges that when he
reached the milk station, he found the milk warm and asked for another. He states that an officer at the milk
station was in the process of granting his request when a second officer
arrived and demanded that McQuay take the warm milk and sit down.
By contrast, the conduct
report alleges that McQuay became disruptive, spoke in a loud voice, held up
the lunch line for several minutes and refused several direct orders to go to
his seat. The report also alleges that
the milk looked cold in that there was condensation on the container and that a
chef checked the milk for temperature immediately after the incident and found
it to be cold.
The Adjustment Committee
conducted a hearing at which the lone witness requested by McQuay appeared and
testified. The witness's testimony was
inconclusive, in that he had not heard the exchange between McQuay and the
officer. McQuay also testified. The committee concluded that McQuay
knowingly disobeyed a verbal order from a staff person acting in an official
capacity. Thereafter, McQuay appealed
to the warden, and then initiated this certiorari action before the circuit court.
STANDARD OF REVIEW
Judicial review of
certiorari actions is limited to determining whether the administrative hearing
committee kept within its jurisdiction, whether it proceeded on a correct
theory of law, whether its action was arbitrary, oppressive or unreasonable and
represented its will and not its judgment, and whether the evidence was such
that the committee might reasonably make the determination in question. As to this last factor, the test is whether
reasonable minds could arrive at the same conclusion reached by the
administrative tribunal. State ex
rel. Brookside Poultry Farms, Inc. v. Jefferson County Bd. of Adjustment,
131 Wis.2d 101, 119-20, 388 N.W.2d 593, 600 (1986). See also Van Ermen v. DHSS, 84 Wis.2d 57, 64, 267
N.W.2d 17, 20 (1978) (same standard applies on appellate review).
ANALYSIS
McQuay's arguments fall
into two categories. First, he raises
credibility challenges. Chief among
these is a challenge to the committee's decision to disbelieve his testimony.
Second, he alleges that various procedures were not followed. Among his arguments are that he was not told
which specific subsection of Wis. Adm.
Code § DOC 303.24 he was charged with violating, that the prison
authorities failed to conduct a sufficient investigation, that a letter he
wrote protesting assignment to Temporary Lockup (TLU) was not considered
sufficiently, that prison officials failed to call the officer at the milk
station who allegedly acquiesced in McQuay's request for a colder milk, and
that prison authorities failed to include a videotape of the incident.
Credibility Determinations
The evidence against
McQuay was the conduct report, and the evidence in his favor was his own
testimony. The committee chose to
disbelieve his evidence, and believe the conduct report. Credibility is a determination for the
committee, and we will not substitute our judgment for the committee's. Robertson Transp. Co. v. Public Serv.
Comm., 39 Wis.2d 653, 658, 159 N.W.2d 636, 638 (1968). Our role is limited to determining whether
there is substantial evidence in the record to support the committee's
determination. Samens v. LIRC,
117 Wis.2d 646, 660, 345 N.W.2d 432, 438 (1984). Such evidence exists here.
McQuay's defense at the
August 10, 1993, hearing was that the reporting officer "was having a
problem with the guy behind me[,] Silvia." However, also in the record is a letter dated August 3, 1993, in
which McQuay offers the quite different theory that the reporting officer
approached McQuay "obviously looking" for a
"confrontation." Although McQuay claims to have simply asked for a
cold milk, the reporting officer allegedly "ordered [him] about
belligerently," requiring him to "`MOVE ON[,] McQuay'" (emphasis
in original). Faced with two
conflicting versions of the facts by McQuay, the committee was entitled to
discount McQuay's version.
Procedural Violations
McQuay argues that he
did not receive sufficient notice of the violation because the conduct report
contained only the section number and omitted the subsection number of the
alleged violations. He implies a lack
of due process. However, the report
contained a complete account of the behavior which constituted the claimed violation. This comports with the requirement that a
charged prisoner be given notice sufficient to permit him to marshal the facts
in his defense and to clarify the facts of the charges. Wolff v. McDonnell, 418 U.S.
539, 564 (1974). The lack of the
subsection number did not deprive McQuay of constitutionally adequate
notice. He knew exactly what behavior
he was accused of, and he knew which section of the administrative code the
alleged behavior violated.
McQuay
also argues that the prison authorities failed to conduct a sufficient
investigation and failed to call to the hearing the officer who allegedly
acquiesced in his request for colder milk.
He concludes that he was therefore denied due process. However, the record reveals that McQuay
requested only an inmate as a witness and specifically waived attendance of the
reporting officer.[1] His witness request form also fails to list
the milk station officer. Permitting a
prisoner to call witnesses is one way in which to meet due process
requirements. Wolff v. McDonnell,
418 U.S. at 566. McQuay could have
caused a far fuller investigation at the hearing by requesting or, at the
least, not waiving attendance of the relevant witnesses. His failure to do so defeats his argument.
McQuay also argues that
a letter he wrote protesting assignment to TLU was not considered
sufficiently. Citing DOC § 303.11,[2]
McQuay argues that his retention in TLU nullified the hearing that
followed. The record contains the
letter, however, as well as the required notice to inmate at the time of
placement in TLU and the required review.
McQuay's argument seems to be that the review is defective for failure
to have written words upon it "considering" his response. McQuay misunderstands the standard. The reviewing officer is required only to
consider the response, not to document the consideration. Nothing in the record demonstrates lack of
consideration. Further, because the
acts reviewed are presumptively regular, the burden is on McQuay to prove
otherwise. Pire v. Wisconsin
State Aeronautics Comm'n, 25 Wis.2d 265, 273, 130 N.W.2d 812, 816
(1964). He has not done so and we do
not consider the matter further.
Finally, McQuay argues that prison
authorities failed to include a videotape of the incident, although we have
only McQuay's assertion that a tape exists.
To the contrary, the record contains a notation that "there is no tape." In certiorari review, we are confined to the
record and may not consider matters outside the record. State ex rel. Irby v. Israel,
95 Wis.2d 697, 703, 291 N.W.2d 643, 646 (Ct. App. 1980). Therefore, we do not consider further the
videotape issue.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The "Inmate's Request for Attendance of Witness" form contains a box to check for the following option: "I'm requesting reporting staff member(s) to attend." Into this area of the form was written the word "NO." Also, the form was partially filled out to request an officer's presence, and the partial request scratched out. We conclude that McQuay affirmatively waived his right to have the reporting officer attend.