Jason E. Huber, Esq.
Darrell
V. McGraw, Jr., Esq.
Forman & Crane, L.C.
Attorney
General
Charleston, West Virginia
Barry
L. Koerber, Esq.
Attorney for Petitioners
Assistant
Attorney General
Charleston,
West Virginia
Attorneys
for Respondents
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
1. 'Mandamus lies to
require the discharge by a public officer of a nondiscretionary duty.' Point
3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna,
151 W. Va. 479[, 153 S.E.2d 284 (1967)]. Syllabus point 1, State
ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W. Va.
636, 171 S.E.2d 545 (1969).
2. A writ of mandamus
will issue when three elements coexist: (1) a clear legal right in the petitioner
to the relief sought; (2) a legal duty on the part of the respondent to do
the thing which the petitioner seeks to compel; and (3) the absence of another
adequate remedy. Syllabus point 5, Parks v. Board of Review of West
Virginia Department of Employment Security, 188 W. Va. 447, 425 S.E.2d
123 (1992).
3. The provisions of
West Virginia Code § 28-5-27 (1992) solely govern the accumulation
of 'good time' for inmates sentenced to the West Virginia State Penitentiary.
Syllabus point 3, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d
293 (1997).
4. Pursuant to W. Va.
Code § 28-5-27(f) (1984) (Repl. Vol. 2001), the Commissioner of
Corrections possesses the sole authority to promulgate disciplinary rules
for the correctional institutions under his/her control, which authority includes
the power to approve requests to restore an inmate's previously forfeited good time credit.
5. Commutation of time
for good conduct is a right created by the Legislature. Syllabus point
8, in part, Woodring v. Whyte, 161 W. Va. 262, 242 S.E.2d 238
(1978).
6. Good time credit
is a valuable liberty interest protected by the due process clause, W. Va.
Const. art. III § 10. Syllabus point 2, State ex rel. Gillespie
v. Kendrick, 164 W. Va. 599, 265 S.E.2d 537 (1980).
7. The restoration of an
inmate's previously forfeited good time credit should be accomplished on a
case-by-case basis in accordance with W. Va. Code § 28-5-27(f)
(1984) (Repl. Vol. 2001) and any policies or procedures implemented by the
Commissioner of Corrections thereunder.
8. Due process requirements
for prison disciplinary hearings are:
(a) Written notice to the
inmate of the claimed violation;
(b) Disclosure to him of the
evidence against him;
(c) Opportunity to be heard
and to present witnesses and documentary evidence;
(d) The right to confront
and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for
not allowing confrontation);
(e) A neutral and detached
hearing body;
(f) A written statement by
the fact-finders of the evidence relied on and reasons for discipline; and
(g) The right to counsel if
the state is represented by a lawyer.
Syllabus point 1, Harrah v. Leverette, 165 W. Va. 665, 271 S.E.2d
322 (1980).
9. Notice of alleged disciplinary
violations must be provided to the charged inmate within a reasonable time
of the occurrence giving rise to such disciplinary proceedings and should
be stated with such specificity as to permit the inmate to understand the
nature of the charge(s) against him/her.
Davis, Chief Justice:
The petitioners, Michael A. Williams, Brett McClaskie,
Gregory Mitchell, Dwight Warren, and John Thacker [hereinafter collectively
referred to as Williams or the petitioners],
(See footnote 1)
individuals incarcerated at Huttonsville Correctional Center [hereinafter
referred to as HCC], seek relief through the extraordinary remedy
of mandamus
(See footnote 2) for alleged injustices committed by Division
of Corrections officials
(See footnote 3) at its Huttonsville facility. Specifically,
the petitioners challenge HCC's procedures for (1) restoring good time credit that has been revoked in conjunction with an inmate's disciplinary violation
and (2) notifying prisoners of alleged disciplinary violations. Upon review
of the parties' briefs, supporting arguments, and pertinent authorities, we
grant as moulded the requested writ of mandamus. In sum, W. Va. Code
§ 28-5-27(f) (1984) (Repl. Vol. 2001) grants to the Commissioner
of Corrections the sole authority to promulgate disciplinary rules for the
correctional institutions under his/her control, which authority includes
the power to approve requests to restore an inmate's previously forfeited
good time credit. Additionally, the restoration of an inmate's previously
forfeited good time credit should be accomplished on a case-by-case basis
in accordance with W. Va. Code § 28-5-27(f) (1984) (Repl. Vol.
2001) and any policies or procedures implemented by the Commissioner of Corrections
thereunder. Finally, notice of alleged disciplinary violations must be provided
to the charged inmate within a reasonable time of the occurrence giving rise
to such disciplinary proceedings and should be stated with such specificity
as to permit the inmate to understand the nature of the charge(s) against
him/her.
Secondly, the petitioners claim that inmates who have committed Class I
rule violations have been denied the restoration of their good time solely
on the basis of their commission of such offenses.
The provisions of West Virginia Code § 28-5-27
(1992) solely govern the accumulation of 'good time' for inmates sentenced
to the West Virginia State Penitentiary. Syl. pt. 3, State v. Jarvis,
199 W. Va. 635, 487 S.E.2d 293 (1997). See also W. Va. Code
§ 28-5-27(k) (1984) (Repl. Vol. 2001) (There shall be no grants
or accumulations of good time or credit to any inmate now or hereafter serving
a sentence in the custody of the department of corrections except in the manner
provided in this section.). In pertinent part, this statute directs
that
(a) All adult inmates now
in the custody of the commissioner of corrections, or hereafter committed
to the custody of the commissioner of corrections . . . shall be
granted commutation from their sentences for good conduct in accordance with
this section.
(b) Such commutation of sentence,
hereinafter called good time, shall be deducted from the maximum
term of indeterminate sentences or from the fixed term of determinate sentences.
(c) Each inmate committed
to the custody of the commissioner of corrections and incarcerated in a penal
facility pursuant to such commitment shall be granted one day good time for
each day he or she is incarcerated . . . .
W. Va. Code § 28-5-27 (1984) (Repl. Vol. 2001).
Of particular relevance to the instant proceeding is
W. Va. Code § 28-5-27(f), which permits the revocation of an
inmate's accrued good time credits if he/she commits a disciplinary violation
during his/her incarceration:
(f) The commissioner of corrections
shall promulgate separate disciplinary rules for each institution under his
control in which adult felons are incarcerated, which rules shall describe acts
which inmates are prohibited from committing, procedures for charging individual
inmates for violation of such rules and for determining the guilt or innocence
of inmates charged with such violations and the sanctions which may be imposed
for such violations. A copy of such rules shall be given to each inmate. For
each such violation, by an inmate so sanctioned, any part or all of the good
time which has been granted to such inmate pursuant to this section may be forfeited
and revoked by the warden or superintendent of the institution in which the
violation occurred. The warden or superintendent, when appropriate and with
approval of the commissioner, may restore any good time so forfeited.
W. Va. Code § 28-5-27(f) (emphasis added). It is from the various
policies adopted and implemented by HCC in conjunction with this statutory language
that the petitioners seek relief through mandamus.
1. Request for good time restoration limited to two-year period preceding
discharge date. The petitioners first complain that respondent Haines,
Warden of HCC, impermissibly prohibits inmates, who have lost good time credit
following their commission of disciplinary violations, from applying for the
restoration of such good time credit until the two-year period immediately
preceding their discharge date. Although there is no explicit written policy
to this effect, petitioner Gregory Mitchell contends that he nevertheless
received written notice from an HCC unit manager, dated June 4, 2002, indicating that Warden Haines would
not approve any good time contract for the restoration of lost good time credits
if [the requesting inmate is] more than 2 years from discharge.
This practice, the petitioners claim, violates W. Va.
Code § 28-5-27 and the Commissioner's own Policy Directive implementing
the same. See West Virginia Division of Corrections Policy Directive
No. 151.02, §§ V.E, V.F.1-5 (May 15, 2001). While § 28-5-
27(f) permits the Commissioner of the Division of Corrections to establish
good time credit policies for each state facility, the petitioners complain
that the practice adopted by HCC was not approved by the Commissioner as required
by statute. They also assert that such a practice effectively usurps all good
time credits in excess of two years that have been accumulated by the affected
inmate.
The respondents reply that Warden Haines reviews
each inmate's request for the restoration of previously lost good time credits
on a case-by-case basis. However, in light of the petitioners' challenge herein,
Warden Haines represents that he will no longer require an inmate, who has
more than two years' lost good time, to be within the two-year period immediately
preceding his/her discharge date before permitting him/her to request its
restoration.
Given Warden Haines' acquiescence in the petitioners'
demands, this issue has technically become moot. Nevertheless, because this matter is both capable
of repetition at another of this State's many correctional facilities and
because its very existence suggests confusion as to the law governing the
restoration of previously revoked good time credits, we will proceed to consider
the merits of the parties' arguments. See, e.g., Syl. pt. 1, Israel
by Israel v. West Virginia Secondary Schs. Activities Comm'n, 182 W. Va.
454, 388 S.E.2d 480 (1989) (Three factors to be considered in deciding
whether to address technically moot issues are as follows: first, the court
will determine whether sufficient collateral consequences will result from
determination of the questions presented so as to justify relief; second,
while technically moot in the immediate context, questions of great public
interest may nevertheless be addressed for the future guidance of the bar
and of the public; and third, issues which may be repeatedly presented to
the trial court, yet escape review at the appellate level because of their
fleeting and determinate nature, may appropriately be decided.).
As has been aptly noted by the petitioners, the Legislature specifically grants authority to the Commissioner of Corrections to promulgate separate disciplinary rules for each institution under his control to establish internal disciplinary rules for each facility and to govern inmate conduct in accordance therewith. See W. Va. Code § 28-5-27(f). Once an inmate has committed a disciplinary violation, the warden or superintendent of the institution in which the violation occurred may revoke any part or all of the good time which he/she previously has been granted. Id. [W]hen appropriate and with approval of the commissioner, [the warden or superintendent] may restore any good time so forfeited. Id. (emphasis added).
Pursuant to the authority granted by W. Va. Code
§ 28-5-27(f), the Commissioner of Corrections has implemented Policy
Directive No. 151.02, which provides, in relevant part, the procedure to be
followed for the revocation and restoration of good time credits:
E. Good time may be forfeited
and revoked by the institution/facility/center Warden/Administrator according
to the rules of discipline promulgated and approved by the Commissioner of Corrections.
The inmate will be notified in writing within thirty (30) days of any change
of the minimum discharge date resulting from this forfeiture and revocation.
F. Good time forfeited as delineated
in Section V, E of this Policy Directive may be restored upon the written recommendation
of the Warden/Administrator, and with the approval of the Commissioner or his/her
designated representative(s) under the following guidelines:
1. The
inmate shall be free of disciplinary violations for one (1) year prior to any
recommendation for restoration of good time.
2. The
Warden/Administrator of the institution/facility/center where the inmate is
housed shall make the recommendation to the Commissioner for good time restoration.
3. The
inmate being recommended for restoration of good time shall enter into a contractual
agreement, with terms and conditions to be determined by the Warden/Administrator
of the confining facility. . . .
4. If,
during the term of the contract, the inmate is transferred from the institution/facility/center where the contract
was initiated and assigned to another institution/facility/center, the contract
shall remain in effect.
5. Upon
fulfillment of the conditions of the good time contract, it is the responsibility
of the Warden/Administrator of the inmate's confining institution/facility/
center to:
a. Credit
restored good time to the inmate's sentence.
b. Notify
the Central and institution/facility/center Records Offices of the change.
c. Notify
the inmate in writing within thirty (30) days of the change in the minimum
discharge date, resulting from the restoration of the forfeited good time.
West Virginia Division of Corrections Policy Directive No. 151.02, §§ V.E,
V.F.1-5 (May 15, 2001).
Despite these explicit procedures for the restoration
of lost good time, we can find no authority for Warden Haines' imposition
of an additional prerequisite that the aggrieved inmate be within two years
of discharging his/her sentence before he/she may request that previously
lost good time credits be restored. On the contrary, we are mindful of the Commissioner's sole authority to promulgate institutional disciplinary
procedures and to approve the restoration of an inmate's previously forfeited
good time credits. See W. Va. Code § 28-5-27(f). The
governing statutory language likewise does not extend this permission to lesser-ranking
corrections officials. See id. Therefore, we hold that, pursuant
to W. Va. Code § 28-5-27(f) (1984) (Repl. Vol. 2001), the Commissioner
of Corrections possesses the sole authority to promulgate disciplinary rules
for the correctional institutions under his/her control, which authority includes
the power to approve requests to restore an inmate's previously forfeited
good time credit.
Neither has respondent Haines offered nor can we
discern any rational basis for this arbitrary temporal requirement. We repeatedly
have held that [c]ommutation of time for good conduct is a right created
by the Legislature. Syl. pt. 8, in part, Woodring v. Whyte, 161
W. Va. 262, 242 S.E.2d 238 (1978). Accord State ex rel. Valentine
v. Watkins, 208 W. Va. 26, 32, 537 S.E.2d 647, 653 (2000). See
also Adkins v. Bordenkircher, 164 W. Va. 292, 298, 262 S.E.2d
885, 888 (1980) (observing that statutory creation of good time confers
a substantive right (internal quotations and citation omitted)). As
such, [g]ood time credit is a valuable liberty interest protected by
the due process clause, W. Va. Const. art. III § 10.
Syl. pt. 2, State ex rel. Gillespie v. Kendrick, 164 W. Va. 599,
265 S.E.2d 537 (1980). Accord Syl. pt. 3, State ex rel. Goff v.
Merrifield, 191 W. Va. 473, 446 S.E.2d 695 (1994); Syl. pt. 2, State
ex rel. Coombs v. Barnette, 179 W. Va. 347, 368 S.E.2d 717 (1988).
For this reason, then, such an interest must be rationally based, Woodring
v. Whyte, 161 W. Va. at 274, 242 S.E.2d at 245, and be protected against the arbitrary abrogation thereof
by the state. See Wolff v. McDonnell, 418 U.S. 539, 557, 94
S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951 (1974) (But
the State having created the right to good time . . . the prisoner's
interest has real substance and is sufficiently embraced within Fourteenth
Amendment 'liberty' to entitle him to those minimum procedures appropriate
under the circumstances and required by the Due Process Clause to insure that
the state-created right is not arbitrarily abrogated.); State ex
rel. Gillespie v. Kendrick, 164 W. Va. at 604, 265 S.E.2d at 540
(The touchstone of due process is protection of the individual against
arbitrary action of government[.] (citing Dent v. West Virginia,
129 U.S. 114, 123, 9 S. Ct. 231, 234, 32 L. Ed. 623, 626 (1889))
(internal quotations and additional citation omitted)).
While we acknowledge that the imposition of such a temporal limitation may be appropriate in some circumstances, the respondents have failed to demonstrate the necessity of applying such a restriction to all good time restoration requests. Without such a showing, we are left with the impression that such a practice is arbitrary and capricious and without a rational basis in the governing law. Accordingly, we hold that the restoration of an inmate's previously forfeited good time credit should be accomplished on a case-by-case basis in accordance with W. Va. Code § 28-5-27(f) (1984) (Repl. Vol. 2001) and any policies or procedures implemented by the Commissioner of Corrections thereunder. Finding no authority for Warden Haines' limitation of restoration requests or rational basis therefor, we grant as moulded the mandamus relief requested in this regard.
2. Cessation of prior unlawful policy vis-a-vis Class I offenses. For
their second contention, the petitioners claim that HCC has acted improperly
by failing to restore good time credits to petitioners Michael Williams, John
Thacker, and Dwight Warren, who had earlier lost their good time credits pursuant
to a memorandum from the Commissioner of Corrections, which has since been rescinded.
On September 1, 2000, the former Commissioner of Corrections issued a memorandum
prohibiting the restoration of good time credits to inmates found guilty of
committing a Class I rule violation
(See footnote 9) between September 5, 1997,
and February 29, 2000. The current Corrections Commissioner, respondent Rubenstein,
rescinded this policy, effective April 18, 2001, stating that [r]estoration
of good time for this period shall be given the same consideration as is for
lost good time regarding Class I rule violations for any other period of time.
Nevertheless, the above-named petitioners aver that their requests for restoration
of good time lost under the prior policy have been denied.
The respondents reply that the petitioners' requests
for restoration of good time lost pursuant to the now-rescinded memorandum
were made before the Commissioner had withdrawn this prior policy. They represent
further that if the aggrieved petitioners reapplied for the restoration of
their lost good time, such requests would be reviewed on a case-by-case basis, with no distinction made between Class I and other rule violations
in accordance with the Commissioner's April 18, 2001, corrective memorandum.
Upon reviewing the supporting documentation submitted
by the parties, we find that the respondents have correctly stated the current
procedural posture of this complaint. It appears from the petitioners' appendix
of documents that petitioner Thacker filed his grievance requesting restoration
of good time lost under the prior policy on January 26, 2001, nearly three
months before the corrective memorandum was issued. Petitioner Williams, who
has since discharged his sentence, filed his restoration of lost good time
grievance on March 12, 2001, approximately one and one-half months before
Commissioner Rubenstein's policy revision. It is not clear, however, when
petitioner Warren requested the restoration of his lost good time.
At this juncture, we need not comment on the legality
of the Commissioner's prior policy since that practice has been rescinded.
We reiterate only that the revocation and restoration of good time must be
accomplished in accordance with W. Va. Code § 28-5-27 and any
policy directives issued by the Commissioner in accordance therewith. Accord
W. Va. Code § 28-5-27(k); Syl. pt. 3, State v. Jarvis,
199 W. Va. 635, 487 S.E.2d 293. In light of the Commissioner's current
policy according the same consideration to requests for restoration of lost
good time regardless of the class of rule violation upon which the revocation
was based, it follows that an inmate's request for restoration of lost good
time also should not distinguish between the different types of rule violations precipitating such revocation.
See West Virginia Division of Corrections Policy Directive No. 151.02,
§ V.F.1-5 (outlining procedure for restoration of lost good time
credits and making no distinction among classes of disciplinary violations
underlying such restoration requests). Therefore, to the extent that the aggrieved
petitioners' requests for restoration of good time revoked under the Commissioner's
prior policy have not previously been disposed of, they should be reconsidered
on a case-by-case basis under the Commissioner's current corrective memorandum.
As noted above, W. Va. Code § 28-5-27(f)
authorizes the Commissioner of Corrections to
promulgate separate disciplinary rules for each institution
under his control in which adult felons are incarcerated, which rules shall
describe acts which inmates are prohibited from committing, procedures for
charging individual inmates for violation of such rules and for determining
the guilt or innocence of inmates charged with such violations and the sanctions
which may be imposed for such violations.
In accordance with such authority, the Commissioner has adopted Policy Directive
No. 325.00 which delineates the procedures to be followed at HCC when an inmate
violates a disciplinary rule. See generally West Virginia Division
of Corrections Policy Directive No. 325.00 (July 1, 2001). Of specific relevance
to the instant proceeding are the policies governing the reporting of a rule
violation and the subsequent notice of such charge to the offending inmate.
Once a corrections official observes a disciplinary
violation, he/she is required to complete an incident report detailing the
nature and circumstances of the incident:
a.
Incident Reports: Any employee witnessing or determining the occurrence
of a rule violation pursuant to this directive shall complete an Incident
Report as soon as possible. These reports will fully describe the date,
time, location, individuals present and all other pertinent details regarding
the alleged violation.
(1) Information
regarding the identity of confidential inmate informants shall be deleted.
(2) All
Incident Reports shall be submitted to the Shift Supervisor, except Work Release
Centers who shall submit to the Chief Correctional Officer/designee.
(3) When
necessary, an appropriate investigation of the alleged rule violation must commence
within twenty-four (24) hours of the time the violation is reported and must
be completed without unreasonable delay, unless there are exceptional circumstances
for delaying the investigation.
(4) The
Shift Commander or Work Release Center Chief Correctional Officer shall provide
the appropriate Unit Manager any Incident Report alleging a Class III rule violation.
The Unit Manager will assess the Incident Report and elect to either dispose
of the matter pursuant to policy governing the Unit Disciplinary Committee or
return it to the Shift Commander/ Chief Correctional Officer for disposition.
West Virginia Division of Corrections Policy Directive No. 325.00, § V.B.9.a
(July 1, 2001) (emphasis added). Following the submission of the aforementioned
incident report, a decision is made whether to formally charge the offending
inmate. If a formal charge is levied, further procedural guidelines dictate
its subsequent disposition.
The Chief Correctional Officer/Shift Commander/designee
will review staff Incident Reports and approve or disapprove charging an inmate
with a violation pursuant to this directive, except for those Class III violations
to be disposed of per the Unit Disciplinary Committee.
a. In
cases involving confidential inmate information, the Chief Correctional Officer/
designee shall be the charging officer.
b. The
charging officer shall complete a violation report, attach all Incident Reports
and forward originals to the Correctional Magistrate.
c. Upon
receipt or notification of the violation report, the Correctional Magistrate
shall assign a date and time for a hearing in accordance with established policy
on the charge and record, or have recorded, the date and time on the face of
the violation report.
d. In
cases where the inmate was not segregated before the hearing, the hearing shall
be held no later than seven (7) days, excluding weekends and holidays, from
the date the inmate was served with the violation report.
e. The
officer who serves the inmate with the copy of the violation report shall
thereafter complete the record of service on the original of the violation report.
West Virginia Division of Corrections Policy Directive No. 325.00, § V.B.10.a-e
(emphasis added). After an inmate is formally charged with a disciplinary rule
violation, then, he/she ultimately receives written notice of such charge when
he/she receives a copy of the violation report. However, it is about this aspect
of the disciplinary process that the petitioners complain, claiming that they
do not receive timely notice of the charges levied against them and that the written statement of charges contained in the violation report
does not adequately inform them of the disciplinary rule violation with which
they have been charged.
It is obvious that prisoners relinquish certain
rights when entering prison, Tasker v. Griffith, 160 W. Va.
739, 744, 238 S.E.2d 229, 232 (1977), but '[i]t [also] has long been
recognized in West Virginia that a prisoner retains basic due process guarantees
despite incarceration.' Crain v. Bordenkircher, 176 W. Va.
338, 345 n.7, 342 S.E.2d 422, 430 n.7 (1986) (quoting Crain v. Bordenkircher,
Final Order (Marshall County Cir. Ct. June 21, 1983) (Recht, J.)) (citations
omitted). Accord Wolff v. McDonnell, 418 U.S. at 555, 94 S. Ct.
at 2974, 41 L. Ed. 2d at 950 ([A] prisoner is not wholly stripped
of constitutional protections when he is imprisoned for crime.); Watson
v. Whyte, 162 W. Va. 26, 29, 245 S.E.2d 916, 918 (1978) ([A]lthough
it is true that restrictions upon liberty are implicit in the penal system,
each must be imposed reluctantly; and new ones, with due process of law.).
To this end, we have held that prison disciplinary proceedings must satisfy
certain due process requirements:
Due process requirements for
prison disciplinary hearings are:
(a) Written notice to the
inmate of the claimed violation;
(b) Disclosure to him of the
evidence against him;
(c) Opportunity to be heard
and to present witnesses and documentary evidence;
(d) The right to confront
and cross-examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation);
(e) A neutral and detached hearing
body;
(f) A written statement by the
fact-finders of the evidence relied on and reasons for discipline; and
(g) The right to counsel if
the state is represented by a lawyer.
Syl. pt. 1, Harrah v. Leverette, 165 W. Va. 665, 271 S.E.2d 322
(1980) (emphasis added). Accord Syl. pt. 1, Nobles v. Duncil,
202 W. Va. 523, 505 S.E.2d 442 (1998); Crain v. Bordenkircher, 176
W. Va. at 347 n.11, 342 S.E.2d at 432 n.11.
Despite this judicial recognition of an inmate's
right to due process in disciplinary proceedings, the particular rights to
timely and specific notice of such charges, which the petitioners assert in
the case sub judice, have not yet been clarified by this Court. The
difficulty attending such a definition can be attributed to the fact that
[p]rison disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due a defendant in such proceedings does not
apply. Wolff v. McDonnell, 418 U.S. at 556, 94 S. Ct. at
2975, 41 L. Ed. 2d at 951 (citation omitted). Moreover, given this
context, there must be mutual accommodation between institutional needs
and objectives and the provisions of the Constitution that are of general
application. Id.
'The fundamental requirement of due process
is the opportunity to be heard at a meaningful time and in a meaningful
manner.' Austin v. Wilkinson, 189 F. Supp. 2d
719, 747 (N.D. Ohio 2002) (quoting Mathews v. Eldridge, 424 U.S. 319,
333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18, 32 (1976) (quoting Armstrong v. Manzo,
380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62, 66
(1965))). But see Dowdy v. Johnson, 510 F. Supp. 836, 838
(E.D. Va. 1981) (mem.) (finding that complaining inmate has no constitutional
right to receive notice of the disciplinary charge [within a certain time]
following the incident). However, [a] hearing is not 'meaningful'
if a prisoner is given inadequate information about the basis of the charges
against him. Austin, 189 F. Supp. 2d at 747 (citation
omitted). Similarly, [p]art of the function of notice is to give the
charged party a chance to marshal the facts in his defense and to clarify
what the charges are, in fact. Wolff, 418 U.S. at 564, 94 S. Ct.
at 2978, 41 L. Ed. 2d at 955 (citation omitted).
In the case sub judice, it appears that substantial
delays have occurred between an inmate's commission of a disciplinary violation
and his receipt of a notice formally charging him therewith. Furthermore,
the specific violation reports delivered to petitioners Brett McClaskie, John
Thacker, and Dwight Warren variously lack certain critical information regarding
the exact nature of the offense committed, the precise date of the violation
cited, and the identity of other individuals alleged to have participated
in such misconduct. While we do not suggest that scrupulous attention to detail
is necessary, it is apparent that basic details about the alleged violations
that are required to be included in the initial incident report have been
omitted from the formal charges contained in the subsequent violation report.
See Policy Directive No. 325.00, § V.B.9.a. If the violation
report served on the affected inmate has attached thereto copies of the incident
report(s) upon which it is based, as does the violation report submitted to the institutional magistrate, it would appear that the
notice of charges would be more factually adequate. See Policy Directive
No. 325.00, § V.B.10.b. It is unclear, though, whether this practice
is the one actually followed at HCC. Therefore, to the extent that the notice
provided to the inmates herein charged with disciplinary violations does not
satisfy the criteria enumerated above, we hold that notice of alleged disciplinary
violations must be provided to the charged inmate within a reasonable time
of the occurrence giving rise to such disciplinary proceedings and should
be stated with such specificity as to permit the inmate to understand the
nature of the charge(s) against him/her. Accordingly, we grant as moulded
the petitioners' writ.
Writ
Granted as Moulded.