Boles v. Sterling

• Court: Colorado Court of Appeals
• Decided: November 26, 2025
• Docket: 24CA1997
• Status: Unpublished

Opinion

24CA1997 Boles v Sterling 11-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1997 Logan County District Court No. 23CV14 Honorable Robert C. James, Judge

Russell M. Boles,

Plaintiff-Appellant,

v.

Sterling Correctional Facility and Warden of Sterling Correctional Facility,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE LUM Tow and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 26, 2025

Russell M. Boles, Pro Se

Philip J. Weiser, Attorney General, Rachel M. Lieb, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees ¶1 In this C.R.C.P. 106.5 action, Russell M. Boles, an inmate in

the custody of the Colorado Department of Corrections (CDOC),

appeals the district court’s judgment affirming his disciplinary

convictions under the CDOC’s Code of Penal Discipline (disciplinary

code). We affirm.

I. Background

¶2 One afternoon, Boles was exiting the prison meal hall when

Captain June Poncetta informed him that she needed to search his

wheelchair. Boles refused the search, and after some struggle, he

punched Poncetta in the stomach. Boles was charged with assault

on staff or visitor (a Class I, Rule 4 violation of the disciplinary code)

and interference with search (a Class II, Rule 13 violation of the

disciplinary code). A three-member board of judges presided over a

disciplinary hearing and found Boles guilty as charged. Boles

received sanctions of fifteen days of restrictive housing and sixty

days’ loss of good time. He appeals his convictions.

II. Applicable Law and Standard of Review

¶3 “After exhausting administrative remedies, an inmate may

obtain judicial review of a disciplinary conviction by filing an action

under C.R.C.P. 106.5(a).” Geerdes v. Dir., Colo. Dep’t of Corr., 226

1 P.3d 1261, 1261 (Colo. App. 2010). When reviewing a CDOC

disciplinary conviction, we sit in the same position as the court

conducting the initial C.R.C.P. 106.5 proceeding, and we review the

court’s ruling de novo. Dawson v. Exec. Dir. of Colo. Dep’t of Corr.,

2014 COA 69, ¶ 6. Our review is limited to determining whether

prison officials exceeded their jurisdiction or abused their discretion

based on the record before the three-member board. Id.; C.R.C.P.

106(a)(4)(I); C.R.C.P. 106.5(a).

III. District Court’s Application of Law

¶4 Boles argues that the district court applied the wrong law to

review his disciplinary convictions. We disagree.

¶5 In its order affirming the convictions, the district court relied

on Kodama v. Johnson, 786 P.2d 417 (Colo. 1990), for the principles

that its review of the case is limited and that it must uphold the

prison officials’ decision if the decision is supported by “some

evidence” in the record. Id. at 420 (“The scope of judicial review in

this type of case is very limited. . . . [T]he decision of the prison

officials must be upheld if it is supported by some evidence in the

record.”).

2 ¶6 We reject Boles’s contentions that (1) Kodama is “completely

irrelevant to the circumstances” in this case and (2) the district

court should have relied on a “competent” or “substantial” evidence

standard instead of Kodama’s “some evidence” standard. Kodama,

like this case, involves review of a prison disciplinary conviction.

And because Kodama remains good law, the district court was

bound by it, as are we.

¶7 As best we understand him, Boles also asserts that the district

court should have considered other grounds for relief, including (1)

“tortious actions” of CDOC personnel (for example, his improper

removal from the general prison population housing conditions that

violated medical advice, assault by other prison officials, and denial

of medical attention); (2) violations of his rights under the First and

Eighth Amendments to the United States Constitution; (3)

retaliation by CDOC officials; and (4) deprivation of property. We

reject this argument. As noted above, the district court must affirm

Boles’s convictions if “there is any evidence in the record that could

support the conclusion reached by the disciplinary board.”

Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56

(1985); Kodama, 786 P.2d at 420. This limited scope of review

3 doesn’t contemplate reversal for the alternate reasons articulated by

Boles.

¶8 In sum, we perceive no error in district court’s application of

the governing law.

IV. Sufficiency of the Evidence

¶9 Boles next argues that the evidence before the board wasn’t

sufficient to convict him. We disagree.

¶ 10 An inmate interferes with a search when they “refuse to allow,

obstruct, or hinder in any way, an employee . . . in their search of

any person, housing unit, or property.” DOC Admin. Reg. 150-

01(IV)(E)(13).

¶ 11 The evidence before the three-member board included

Poncetta’s sworn statement, “I instructed the offender that we were

going to do a search of offender’s wheel chair [sic] when Boles told

me ‘No you are not.’” Another inmate testified that Boles was not

compliant with staff directives after Poncetta asked to search his

wheelchair. This evidence amply supports Boles’s conviction for

interference with a search.

¶ 12 “An offender commits [assault on staff or visitor] when they

intentionally . . . apply any physical force against an employee . . .

4 regardless of whether such force results in injury.” DOC Admin.

Reg. 150-01(IV)(D)(4).

¶ 13 Poncetta’s statement also reads, “I once again asked what was

in offenders [sic] coat and that is when the offender did a closed

fisted punch to my stomach and got my right side of my stomach.”

Another officer explained in a sworn statement that, after Poncetta

confiscated something from Boles, he began swinging his arms at

her. Contrary to Boles’s argument, this evidence was sufficient for

the three-member board to conclude that Boles intentionally

applied force against Poncetta. See People v. Johnson, 2024 CO 32,

¶ 36 (“[A] defendant’s intent can, and often must, be proved by

circumstantial evidence.” (citation omitted)).

¶ 14 The remainder of Boles’s arguments about the evidence before

the board amounts to a request for us to reweigh the evidence and

the credibility of witnesses, which we can’t do. See Superintendent,

472 U.S. at 455 (noting the “some evidence” standard “does not

require examination of the entire record, independent assessment of

the credibility of witnesses, or weighing of the evidence”); cf.

Martinez v. Bd. of Comm’rs of Hous. Auth., 992 P.2d 692, 696 (Colo.

5 App. 1999) (credibility determinations and evidentiary weight are

committed to the housing authority board’s discretion).

¶ 15 Because the record supports Boles’s convictions, we must

affirm them.

V. Due Process

¶ 16 Boles next contends that he didn’t receive due process at the

disciplinary hearing. We again disagree.

A. Applicable Law

¶ 17 A failure to provide due process at a disciplinary hearing is an

abuse of discretion. See Fisher v. Colo. Dep’t of Corr., 56 P.3d 1210,

1213 (Colo. App. 2002). But an “inmate in a disciplinary hearing

enjoys only the most basic due process rights.” Washington v.

Atherton, 6 P.3d 346, 347 (Colo. App. 2000). The due process rights

applicable to a prison disciplinary hearing are (1) advance written

notice of the charged violations of the disciplinary code; (2) a written

statement by the hearing officer giving reasons for the hearing and

the evidence relied upon; and (3) the right to call witnesses and

present evidence “when doing so does not interfere with the security

and order of the institution.” Mariani v. Colo. Dep’t of Corr., 956

P.2d 625, 628 (Colo. App. 1997).

6 B. Witnesses

¶ 18 Boles contends that the three-member board violated his due

process rights when they denied his request to call Poncetta as a

witness. We conclude any error is harmless.

¶ 19 An inmate’s right to call witnesses is not absolute, and it must

be balanced against institutional needs and objectives of the

correctional facility. In addition to the facility’s discretion to

exclude witnesses for security reasons, “[w]itnesses may be limited

by the hearing officer or board if their testimony is determined to be

irrelevant, incompetent, or unduly repetitious and such

determination is documented in the record.” DOC Admin. Reg.

150-01(IV)(F)(3)(h)(4).

¶ 20 The three-member board declined to let Boles call Poncetta

because she no longer worked for the CDOC by the time of Boles’s

hearing. This reasoning doesn’t imply that the evidence was

irrelevant, incompetent, or unduly repetitious testimony, nor does it

appear to implicate the “security and order” of the institution. See

DOC Admin. Reg. 150-01(IV)(F)(3)(h)(4); Mariani, 956 P.2d at 628.

¶ 21 But even assuming that the three-member board erred, Boles

doesn’t explain what testimony he planned to elicit from Poncetta,

7 how her testimony may have differed from or undermined her

account of the incident in her sworn statement, or how her

testimony would have supported his defense or otherwise changed

the outcome of the proceeding. For these reasons, we conclude that

any error is harmless. Alward v. Golder, 148 P.3d 424, 429-30

(Colo. App. 2006) (rejecting a prisoner’s arguments when there was

no showing of prejudice); see also Chesson v. Jaquez, 986 F.2d 363,

366 (10th Cir. 1993) (rejecting an inmate’s challenge to the inability

to present witnesses when the inmate failed to show how the

testimony of an officer would have affected the outcome of the case).

C. Notice of Charges

¶ 22 Boles argues that he received insufficient notice of the charges

against him. We disagree.

¶ 23 An inmate shall receive advance written notice of the

disciplinary charges pending against him so that he may have “a

chance both to clarify the nature of the charges and to marshal

facts in his . . . defense.” Mariani, 956 P.2d at 629 (citing Wolff v.

McDonnell, 418 U.S. 539, 564 (1974)).

¶ 24 The record reflects that Boles received notice of the charges on

May 9, 2023, which he also acknowledged on the record during the

8 disciplinary hearing. And in accordance with the disciplinary code,

the written notice of hearing listed the specific rules violated, a

statement of the charges, the names of staff witnesses, the

immediate action taken, the date and time of the incident, the date

and time of the scheduled hearing, and the place of the incident.

See DOC Admin. Reg. 150-01(IV)(F)(3)(c)(3).

¶ 25 Boles further contends notice was insufficient because he

didn’t receive copies of the officers’ incident reports prior to his

hearing. We decline to address this contention because Boles didn’t

raise it at the disciplinary hearing or in his administrative appeal.

Therefore, he didn’t preserve the contention for our review. See

Higgins v. Colo. Dep’t of Corr., 876 P.2d 124, 126 (Colo. App. 1994)

(declining to address argument related to an inmate’s inability to

call witnesses when the inmate didn’t seek to present witnesses at

the disciplinary hearing); Phillips v. Exec. Dir., Colo. Dep’t of Corr.,

251 P.3d 1176, 1179 (Colo. App. 2010) (superseded by statute on

other grounds).

D. Hearing Officer’s Neutrality

¶ 26 Boles asserts that the “hearing officer” wasn’t impartial

because he acted as both the judge and the prosecutor. The record

9 belies his argument because it reflects that Lieutenant Chase

Felzein investigated the charges against Boles and acted as the

disciplinary officer prosecuting the case, while Lieutenant Jay

Greenslade, Lieutenant Fernandez, and Officer Tonche1 comprised

the three-member board of judges. The record doesn’t reflect any

partiality on the part of the judges who convicted Boles.

¶ 27 For the above reasons, we perceive no reversible error.

VI. Other Procedural Violations

¶ 28 Boles next argues that the three-member board abused its

discretion by violating various procedural regulations governing

disciplinary proceedings. We disagree.

A. Hearing Timing

¶ 29 Boles argues that his hearing didn’t take place within seven

working days as required by the disciplinary code. The disciplinary

code provides that the hearing will be scheduled no later than seven

working days after the offender has been charged with the violation.

DOC Admin. Reg. 150-01(IV)(F)(3)(e). The record reflects that Boles

received a signed notice of charges on May 9, 2023, and the

1 Lieutenant Fernandez’s and Officer Tonche’s first names don’t

appear in the record.

10 disciplinary hearing took place on May 12, 2023. Thus, the hearing

was timely.

B. Arguments Made During Disciplinary Hearing

¶ 30 Boles asserts that the three-member board refused to hear his

arguments related to his religious practices, his ongoing medical

conditions, prison policies related to search and seizure, and prison

policies regarding food consumption. He contends that this violated

the disciplinary code, which provides that witness testimony “made

through an offer of proof” can be accepted as evidence “without

actually calling the witness” when “questioning of the absent

witness” is deemed unnecessary by the board. DOC Admin. Reg.

150-01(IV)(F)(3)(h)(7).

¶ 31 As best we can discern, the statements Boles says were

excluded appear to be legal arguments, not offers of proof. Further,

even if Boles’s arguments can be construed as offers of proof, the

regulation’s language is permissive, not mandatory. That is, the

three-member board didn’t have to allow Boles to present his

evidence by offer of proof. Moreover, the board has the discretion to

exclude evidence because it is irrelevant, and Boles’s arguments

weren’t relevant to the questions before the board: whether Boles

11 intentionally made contact with Poncetta and whether he interfered

with the search.

C. Composition of Three-Member Board

¶ 32 Next, Boles asserts that the composition of the three-member

board violated section 150-01(IV)(F)(1)(a)-(c) of the disciplinary code.

Specifically, he argues that no member was sufficiently independent

from the facility, that the individual officers were not from an

“approved list,” and that the officers were not properly trained. We

decline to review these contentions because Boles doesn’t cite any

evidence in the record supporting them, and they are otherwise

undeveloped. Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC,

2020 COA 34, ¶ 41 n.12 (“We don’t consider undeveloped and

unsupported arguments.”), aff’d, 2021 CO 56.

D. Statement of Involvement in Investigation

¶ 33 Lastly, Boles argues that the hearing officers “did not make

any statement on [the] record of involvement in the investigation” in

his case. The disciplinary code provides, “A hearing officer or

member of the hearing board may be aware of investigations and

information about the incident without being biased. If such

involvement exists, a brief description of the officer’s or board

12 member’s involvement will be made a part of the record.” DOC

Admin. Reg. 150-01(IV)(F)(1)(b) (emphasis added). Thus, the

disciplinary code requires a statement of involvement only when a

board member has information about or was previously involved in

investigating the incident. The record doesn’t reflect that any

member of the three-member board had such involvement or

information, so no statement was necessary.

VII. Disposition

¶ 34 We affirm the judgment of the district court.

JUDGE TOW and JUDGE MOULTRIE concur.