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COURT OF APPEALS DECISION DATED AND RELEASED December
14, 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,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0371
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN EX REL. AL-FURQAAN FUSSILAT
A/K/A
SEAN F. ROWELL,
Petitioner-Appellant,
v.
GARY
R. MCCAUGHTRY,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Dodge County: THOMAS W. WELLS, Judge. Affirmed
and cause remanded with directions.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
VERGERONT,
J. Sean F. Rowell is an inmate
confined to the custody of the Wisconsin Department of Corrections. He appeals from an order affirming a
disciplinary decision made by a Waupun Correctional Institution hearing
officer. Rowell raises the following
issues on appeal: (1) whether prison
officials failed to provide an adequate reason for placing him in temporary
lockup; (2) whether prison officials failed to conduct an adequate
investigation prior to issuing the conduct report in violation of Wis. Adm. Code § DOC 303.66(1);
(3) whether the security director failed to properly review the conduct report
under Wis. Adm. Code § DOC
303.67; (4) whether prison officials failed to timely provide exculpatory evidence
in violation of Wis. Adm. Code
§ DOC 303.66(2); (5) whether he validly waived his right to a formal due
process disciplinary hearing under Wis.
Adm. Code § DOC 303.76(2); (6) whether the hearing officer failed
to corroborate the statements of two confidential informants; (7) whether the
hearing officer provided an adequate statement of the reasons for his decision;
and (8) whether the trial court erred in remanding the matter to the hearing
officer with directions to supplement his reasons for the decision. We reject each of Rowell's contentions and
affirm.
BACKGROUND
Rowell
was charged in a conduct report with battery of another inmate in violation of Wis. Adm. Code § DOC 303.12.[1] The conduct report states in relevant part:
This
conduct report was written following an investigation. On [March 1, 1994, at 3:52 p.m.] a 10-10 was
called over the institution radio by officer Michael Norton. Officer Norton knew that there was a fight
in progress but could not identify the participants because they were not in
his line of vision. Responding officers
retained inmates Charles Gates and Sean Rowell in the [Northwest Cell
Hall]. Inmate Gates ... had visible
fresh wounds on his face as well as lacerations on his left ear. Inmate Rowell ... appeared to be breathing
hard and had visible redness over the knuckles on both his right and left
hands.
....
While
inmate Gates was being treated by H.S.U. staff Gates made the following
statements[:] "As I was walking
through the NCH underpass on my way back to the [Northwest Cell Hall], inmate
Rowell hit me in the head and knocked me on a cart and punched and kicked me in
my chest and head."
....
During
the course of an investigation into this matter, I developed two confidential
informants who claimed to be eye witnesses to an assault by inmate Rowell on
inmate Gates. The two informants will
be referred to hereafter as C.I. #1 and C.I. #2.
C.I.
#1 states, "On March 1st 1994 I observed the following, inmate Rowell on
top of inmate Gates, hitting him."
C.I.
#2 states, "I seen what happened on 3-1-94 at about 4:00 p.m.... I seen 2
black men fighting. One man called
"G.D." his last name is Gates was on his back and a black cart that
was out there. The other black man
named Rowell was just kicking the shit out of Gates. Gates had his hand up, I think trying to stop some of the
hits."
....
Signed, sworn, and notarized statements provided by the
informants will be provided to the members of the due process committee only.
Pending
an investigation of the incident, Rowell was placed in temporary lockup. With his copy of the conduct report, Rowell
also received a form entitled "Notice
of Major Disciplinary Hearing Rights and Waiver of Major Hearing and Waiver of
Time (For Major or Minor Disciplinary Hearings)," informing him of
his right to a formal due process hearing under Wis. Adm. Code § DOC 303.76. Rowell signed this form, and a minor disciplinary hearing was
conducted under Wis. Adm. Code
§ DOC 303.75.
At
the minor hearing,[2] Rowell
submitted a written statement asserting that while the victim initially
indicated he was battered by two inmates, the next day he stated that he was
battered by only Rowell. Rowell stated
that the second inmate, Ezzard McKinney, had also been placed in TLU for the
alleged battery to Gates, but had been released. Rowell also maintained that he was at the adjustment center at
the time of the incident and questioned how the victim could remember him.
The
hearing officer found Rowell guilty of battery, relying on the statement in the
conduct report and Rowell's written statement.
As a reason for his decision, the hearing officer stated, "I find
Rowell intentionally injured Gates by punching him in the head." The hearing officer imposed a penalty of eight
days' adjustment segregation and 360 days' program segregation. As a reason for the disposition, the hearing
officer stated: "Poor attitude. Very aware of committing the violation. Risk of injury. Creates a security risk.
TLU time considered." Rowell's appeal to the institution superintendent was denied.
Rowell
filed a petition for a writ of certiorari with the trial court for review of
the disciplinary proceeding. In his
petition, Rowell made several arguments.
First, he alleged that prison officials failed to provide an adequate
reason for placing him in temporary lockup pending an investigation of the
incident. Second, he alleged the
security director failed to properly review the conduct report in violation of Wis. Adm. Code § DOC 303.67. Third, he alleged that prison officials
failed to conduct an adequate investigation prior to issuing the conduct report
in violation of Wis. Adm. Code
§ DOC 303.66(1). Fourth, he
alleged that prison officials failed to provide him with a copy of an incident
report, which includes a statement that two inmates, not one inmate, assaulted
Gates, in violation of Wis. Adm. Code
§ DOC 303.66(2). He asserted that
he obtained the report from the records office after the hearing. Fifth, he alleged that he did not validly
waive his right to a formal due process disciplinary hearing. Sixth, he alleged that the hearing officer
failed to corroborate the statements of two confidential informants. Finally, he alleged the hearing officer did
not provide an adequate statement of the reasons for his decision.
The
trial court issued the writ of certiorari and the respondent submitted a return
of the record of the disciplinary proceeding.
The trial court rejected all of Rowell's contentions, but remanded the
matter to the hearing officer with directions to provide a more thorough
explanation of his reason for the decision.
On
remand, the hearing officer added the following reason for his decision:
I relied on staff noting Rowells heavy
breathing and visible redness over knuckles of both hands.
Victim Gates said
Rowell did it. Both confidential
informants identified Rowell as the assaulter and aggressor. Their statements are consistent with Gates
injuries and the appearance of Rowell (breathing and redness), I found them
both to be credible.
When
the amended return was filed, the trial court concluded that the hearing
officer's supplemented reason for the decision was adequate and affirmed the
hearing officer's decision.
SCOPE OF REVIEW
On
certiorari, we are limited to determining:
(1) whether the agency kept within its jurisdiction; (2) whether it
acted according to law; (3) whether its action was arbitrary, oppressive or
unreasonable; and (4) whether the evidence presented was such that the agency
might reasonably make the determination it did. See Van Ermen v. DHSS, 84 Wis.2d 57, 63, 267
N.W.2d 17, 20 (1978). The test on
certiorari is whether reasonable minds could arrive at the same conclusion
reached by the agency. State ex
rel. Palleon v. Musolf, 120 Wis.2d 545, 549, 356 N.W.2d 487, 489
(1984). "An important component of
the analysis is whether the department followed its own rules, `for an agency
is bound by the procedural regulations which it itself has promulgated.'" State ex rel. Riley v. DHSS,
151 Wis.2d 618, 623, 445 N.W.2d 693, 694-95 (Ct. App. 1989) (quoting State
ex rel. Meeks v. Gagnon, 95 Wis.2d 115, 119, 289 N.W.2d 357, 361 (Ct.
App. 1980)).
BASIS FOR
TEMPORARY LOCKUP
Rowell
first contends that prison officials failed to provide a sufficient written
reason for placing him in temporary lockup (TLU) pending an investigation of
the incident. We agree.
Prison
officials must provide sufficient reasons for placing an inmate in TLU. State ex rel. Riley, 151
Wis.2d at 621 n.1, 445 N.W.2d at 694.
Here, on the form entitled "Notice
of Inmate Placed in Temporary Lockup," prison officials checked a
box indicating: "If the inmate
remains in the general population it is more likely than not that ... the inmate
will encourage other inmates by example, expressly, or by their presence to
defy staff authority and thereby erode staff's ability to control a particular
situation." The State concedes
that this is an insufficient explanation for placing Rowell in TLU, as it is no
more than a recitation of Wis. Adm. Code
§ DOC 303.11(4)(b).[3]
Our
conclusion does not require reversal, however, for the limited scope of
certiorari review does not provide a remedy for a violation of Wis. Adm. Code § DOC
303.11(4)(b). See State ex
rel. Riley, 151 Wis.2d at 621 n.1, 445 N.W.2d at 694. The failure to provide an adequate reason
for placing Rowell in TLU does not appear to have had any impact on the hearing
officer's decision on the charge in the conduct report. Thus, the violation does not provide a basis
for reversal of the hearing officer's decision. As in State ex rel. Riley, we will remand this
matter to the trial court with directions to enter an order expunging any
reference to Rowell's placement in TLU from his prison records.
INVESTIGATION
UNDER Wis. Adm. Code § DOC
303.66(1)
Rowell
argues that the staff member who issued the conduct report violated his
obligation under Wis. Adm. Code
§ DOC 303.66(1) to conduct an investigation to assure himself that a
violation occurred before issuing a conduct report. We reject this argument.
Wisconsin Administrative Code § DOC 303.66(1) provides in relevant part:
[A]ny staff member who observes or finds out about a
rule violation shall do any investigation necessary to assure himself or
herself that a violation occurred, and if he or she believes a violation has
occurred, shall write a conduct report.
The
Appendix Note to this provision states in part:
If the officer did
not personally observe the infraction, sub. (1) requires that he or she
investigate any allegation to be sure it is believable before writing a conduct
report. An informal investigation by
the reporting officer can save the time of the adjustment committee by weeding
out unsupported complaints, and can also provide additional evidence to the
adjustment committee if any is found.
Also, it is fairer to the inmate to spare him a hearing when the officer
cannot uncover sufficient evidence.
The
conduct report plainly states that it was issued after an investigation. The investigation revealed that when
officers responding to a report of a fight arrived at the scene, inmate Gates
had fresh wounds to his face and ear, Rowell appeared to be breathing hard and
had visible redness over the knuckles of both hands, and Gates stated that
Rowell had hit him in the head, knocked him onto a cart, and punched and kicked
his head and chest. The investigating
officer also obtained the signed, sworn and notarized statements of two
confidential informants who claimed to be eyewitnesses to Rowell's battery of
Gates. This pre-conduct report
investigation was sufficient to satisfy the requirement in Wis. Adm. Code § DOC 303.66 that a
staff member conduct any investigation necessary to satisfy himself or herself
that a battery had occurred and that Rowell was the aggressor.
SECURITY
DIRECTOR'S REVIEW
Rowell
contends that the security director's review of the conduct report under Wis. Adm. Code § DOC 303.67 was
deficient. Rowell argues that the
security director should have dismissed the conduct report, or at least reduced
the charge to Wis. Adm. Code §
DOC 303.17 (Fighting), because there was no factual basis for a conclusion that
he was the aggressor. We reject this
argument because the conduct report quotes Gates and the two confidential
informants as alleging that Rowell was the aggressor.
EXCULPATORY
EVIDENCE
Rowell
asserts that the staff member who prepared the conduct report failed to include
relevant physical evidence with the conduct report in violation of Wis. Adm. Code § DOC 303.66(2).[4] Specifically, Rowell contends that the staff
member should have included a copy of an incident report which includes an
"exculpatory" statement that Gates was assaulted by two
inmates.[5]
Even
if the incident report were considered "physical evidence," there is
no indication that the incident report was one of the documents before the
hearing officer at the time of the hearing.
The return of the record is certified to be "the complete record of
all proceedings related to the matter or matters which are the subject of a
writ of certiorari." In the
absence of a showing that the record is incorrect, the petitioner must be
content to have his rights determined from the facts contained in the return of
the record. See State ex
rel. Gray v. Common Council, 104 Wis. 622, 627, 80 N.W. 942, 943
(1899). See also State ex
rel. Irby v. Israel, 95 Wis.2d 697, 705-06, 291 N.W.2d 643, 647 (Ct.
App. 1980). Because the incident report
is not part of the record, we cannot consider it.[6]
WAIVER OF
FORMAL DISCIPLINARY HEARING
Rowell
contends that he did not execute a valid waiver of his right to a formal due
process disciplinary hearing to which he was entitled under Wis. Adm. Code § DOC 303.76. He does not allege that his waiver was not
knowing and intelligent. Rather, he
argues that his waiver was invalid because he did not check all of the boxes on
the waiver form provided by the DOC.
Wisconsin
Administrative Code § DOC 303.76 provides that an inmate accused of
a major offense is entitled to a formal due process disciplinary hearing. A violation of Wis. Adm. Code § DOC 303.12 (Battery) is a major offense. However, Wis.
Adm. Code § DOC 303.76(2) provides that an inmate accused of a
major offense may waive his or her right to a formal due process hearing.[7] When an inmate charged with a major offense
waives his or her right to a formal due process hearing, a hearing of the type
used for a minor offense is used.
Rowell's offense was disposed of under this minor offense
procedure. See Wis. Adm. Code § DOC 303.75.
Wisconsin Administrative Code § DOC 303.76(2) provides that "[a]n inmate may
waive the right to a due process hearing in writing at any time." The Appendix Note to that provision provides
the following:
To ensure that any
waiver is a knowing, intelligent one, the inmate must be informed of his or her
right to a due process hearing and what that entails; be informed of what the
hearing will be like if he or she waives due process; and be informed that the
waiver must be in writing.
All
the requirements of a knowing and intelligent waiver were met in this
case. Rowell was provided with a DOC
form entitled "Notice of Major
Disciplinary Hearing Rights and Waiver of Major Hearing and Waiver of Time." Rowell checked boxes on this form indicating
that: (1) he had read the notice of
major disciplinary hearing rights; (2) he understood what his rights were; (3)
he understood that in waiving his rights he was waiving his rights to a staff
advocate and to request witnesses; and (4) he was waiving his right to a formal
due process hearing, but was not admitting his guilt. The form is signed and dated by Rowell, and witnessed.
It
is true that Rowell ignored a section of the form that included boxes designed
to indicate whether the inmate is waiving his right to a formal due process
hearing and to certain hearing time limits, or only one or the other. However, the significant point is that
Rowell fully completed the section of the form dealing with waiver of a formal
due process hearing. Because Rowell
completed the relevant portion of the waiver form and does not contend that his
waiver was not knowing and intelligent, we reject his argument that his waiver
was invalid.
CONFIDENTIAL
INFORMANT STATEMENTS
Rowell
asserts that the record does not reflect that the statements of the two
confidential informants were corroborated under Wis. Adm. Code § DOC 303.86(4).[8] However, the provisions of Wis. Adm. Code § DOC 303.86(4)
apply only in formal due process hearings, not minor hearings. State ex rel. Hoover v. Gagnon,
124 Wis.2d 135, 150, 368 N.W.2d 657, 664 (1985).[9] Rowell validly waived his right to a formal
due process hearing. Accordingly, the
hearing officer properly relied on the statements of the confidential
informants, whether or not they were corroborated within the meaning of Wis. Adm. Code § DOC 303.86(4).
REMAND
Rowell
complains that the trial court erred in remanding the matter to the hearing
officer with directions to supplement his reasons for the decision. We disagree. A court sitting in certiorari may remand for limited
purposes. State ex rel. Lomax v.
Leik, 154 Wis.2d 735, 741, 454 N.W.2d 18, 21 (Ct. App. 1990). One of those purposes is to direct the
adjustment committee or hearing officer to set forth the evidence relied on and
the reasons for whatever penalty is imposed.
See State ex rel. Irby, 95 Wis.2d at 708, 291
N.W.2d at 648. On remand, the hearing
officer indicated that in addition to the statements in the conduct report, he
relied on the statements of the confidential informants. This did not involve an impermissible
shoring-up of deficient findings. See
State ex rel. Meeks, 95 Wis.2d at 129, 289 N.W.2d at 365. The hearing officer did not reopen the
evidentiary record against Rowell--he simply provided further reasons for his
decision.
SUFFICIENCY OF THE
EVIDENCE
When
a court on certiorari considers whether the evidence is such that the hearing
officer might reasonably have made the decision that he or she did, the court
does not conduct a de novo review. Van
Ermen, 84 Wis.2d at 64, 267 N.W.2d at 20. The court does not weigh the evidence, nor may it substitute its
view of the evidence for that of the hearing officer. Id. The
inquiry is whether there is substantial evidence in the record to support the
conclusion reached by the hearing officer.
Id.
Under
this standard, we affirm the hearing officer's decision. In the conduct report, upon which the
hearing officer relied, Gates is quoted as saying that Rowell "hit me in
the head and ... punched and kicked me in my chest and head." The conduct report also cites the staff
member's statement that Rowell was breathing heavy and had visible redness over
the knuckles of both hands when he was located, which the hearing officer noted
was consistent with Gates' injuries.
Finally, the summaries of the two confidential informants indicate that
they viewed the incident and that it was Rowell who was involved in the battery
and who was the aggressor.
By
the Court.—Order affirmed and
cause remanded with directions.
Not
recommended for publication in the official reports.
[1] Wisconsin
Administrative Code § DOC 303.12 provides: "Any inmate who
intentionally causes bodily injury to another is guilty of an offense."
[2] The hearing was postponed so that Rowell
could obtain summaries of the statements made by the confidential informants.
[3] Wisconsin
Administrative Code § DOC 303.11(4) provides in part:
An inmate may be
placed in TLU and kept there only if the decision maker is satisfied that it is
more likely than not that one or more of the following is true:
....
(b) If the inmate
remains in the general population, he or she will encourage other inmates by
example, expressly, or by their presence, to defy staff authority and thereby
erode staff's ability to control a particular situation.
[4] Wisconsin
Administrative Code § DOC 303.66(2) provides that in preparing a
conduct report, "[a]ny physical evidence shall be included with the
conduct report."
[6] We note that Wis. Adm. Code § DOC 310.04(3) provides that the Inmate
Complaint Review System (ICRS) may be used to challenge the procedure used by
the adjustment committee or hearing officer.
See State ex rel. Irby v. Israel, 95 Wis.2d 697,
291 N.W.2d 643 (Ct. App. 1980) (inmate used the ICRS to challenge the
adjustment committee's failure to consider a piece of documentary evidence at
his disciplinary hearing).
[7] Waiver of the right to such a formal due
process hearing includes waiver of the inmate's right to a staff advocate and
to question or confront witnesses. See
Wis. Adm. Code § DOC
303.76. In a minor hearing, the inmate
still has an opportunity to make a statement, there is an impartial hearing
officer, a decision is based on the evidence, and an entry in the records is
made only if the inmate is found guilty.
See Appendix Note, Wis.
Adm. Code § DOC 303.76.
[8] Wisconsin
Administrative Code § DOC 303.86(4) provides in part:
If a witness
refuses to testify in person and if the committee finds that testifying would
pose a significant risk of bodily harm to the witness, the committee may
consider a corroborated, signed statement under oath from that witness without
revealing the witness's identity.