Personal Restraint Petition Of Joseph Koppenstein

• Court: Court of Appeals of Washington
• Decided: April 21, 2015
• Docket: 46864-6
• Status: Unpublished

Opinion

COURTFILED

OF APPEALS DIVISION 7I 2015 APR 21 M 9: 06 S T AT .. a ra r. 1 BY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In re the Matter of No. 46864 -641 Personal Restraint Petition of

JOSEPH KOPPENSTEIN,

Petitioner. UNPUBLISHED OPINION

JOHANSON, C. J. — Joseph Koppenstein seeks relief from personal restraint imposed

following a prison disciplinary proceeding in which a hearing officer found him guilty of violating

WAC 137 -25 -030 ( Category C – Level 1, infraction 610) ( unauthorized possession of a prescribed

medication greater than a single daily dose). 1 He claims that the evidence does not support this

infraction and asks that it be expunged.

We review prison disciplinary proceedings to determine whether the Department of

Correction' s ( DOC) action was so arbitrary and capricious as to deny the petitioner a

fair proceeding. In Reismiller, 101 Wn.2d 291, 294, 678 P. 2d 323 ( 1984). In fundamentally re

1 The hearing officer also found petitionerguilty of violating WAC 137 -28- 220( 1) ( infraction 328) and WAC 137 -25 -030 ( Category B– Level 2, infraction 556). He does not challenge these infractions. No. 46864 -6 -II

doing so, we look to whether petitioner received the due process protections afforded him under

Wolff v. McDonnell, 418 U.S. 539, 563 -65, 94 S. Ct. 2963, 41 L. Ed. 2d 935 ( 1974). These

protections include: ( 1) advance written notice of the charged violations, ( 2) the opportunity to

present documentary evidence and call witnesses when not unduly hazardous to institutional safety

and correctional goals, and ( 3) a written statement of the evidence relied on and the reasons for the

disciplinary action.

Petitioner challenges only the third of these protections, claiming no evidence supported

the infraction. We affirm a department' s decision as long as there is any evidence in the record to

support it. Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.

Ct. 2768, 86 L. Ed. 2d 356 ( 1985); In re Pers. Restraint ofJohnston, 109 Wn.2d 493, 497, 745

P. 2d 864 ( 1987). Here, the DOC contends that the evidence supporting the infraction consisted of

the reporting officer' s report in which the officer stated that petitioner did not have a valid

prescription for the three dicyclomine hydrochloride pills found in petitioner' s shirt pocket.

Petitioner argues that this is not true, that he had a valid prescription, that a daily dose is four pills,

and that Nurse Sheridan Roberts stated in his report, " The Offender does have a prescription for

this medication." Resp. Ex. 2, Attach. C.

This court' s role is not to reweigh the evidence but rather to determine if some evidence in

the record supports the hearing officer' s decision. The only evidence supporting the infraction is

the reporting officer' s statement that petitioner did not have a valid prescription. But nothing in

the record explains the reporting officer' s basis of knowledge, especially in that he asked the nurse

to identify the pills and the nurse reported that petitioner had a prescription for the drugs. While

the evidentiary standard is highly deferential to the disciplinary process, a verifiable fact should

2 No. 46864 -6 -II

not be disregarded for a conjectural statement. Certainly, this is not what our Supreme Court

intended when it defined the evidentiary standard that would satisfy due process. Hill, 472 U.S.

at 457. See Reismiller, 101 Wn.2d at 296 ( insufficient evidence because there was no reasonable

connection between the inmate and the evidence); see In re Hews, 99 Wn.2d 80, 88, 660 P. 2d 263

1983) ( if petitioner makes prima facie showing of actual prejudice but the record is insufficient 2 to determine the merits of his claims, court should remand for a new hearing).

Accordingly, we grant this petition. The DOC may expunge petitioner' s infraction or grant

petitioner a new hearing. If it holds a new hearing, the hearing officer should consider the available

evidence to decide if in fact petitioner had a valid prescription and what constitutes a daily dose in

deciding whether petitioner violated WAC 137 -25 -030 ( Category C — Level 1, infraction 610).

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,

it is so ordered.

We concur:

2 We disagree with the DOC that any error was harmless simply because the sanction was imposed concurrently with his other infractions. There are more consequences than loss of good time. DOC Policy 320. 150. 3