Saenz v. Murphy

469 N.W.2d 611, 162 Wis. 2d 54, 1991 Wisc. LEXIS 312

• Court: Wisconsin Supreme Court
• Decided: May 22, 1991
• Docket: 88-2084
• Status: Published

Opinions

LOUIS J. CECI, J.

This case is before the court on petition for review of a decision of the court of appeals, Saenz v. Murphy, 153 Wis. 2d 660, 451 N.W.2d 780 (Ct. App. 1989). The court of appeals affirmed in part and reversed in part a judgment of the circuit court for Dane county, George A.W. Northrup, Circuit Judge. The circuit court granted summary judgment to the defendants on the grounds that Jerry Saenz (Saenz) was accorded due process of law and, therefore, did not have a cause of action under 42 U.S.C. sec. 1983 (1988) [hereinafter sec. 1983].¹ The court of appeals held that Saenz did have a cause of action under sec. 1983 because he was denied his constitutional right to call a witness at an inmate disciplinary hearing. Saenz, 153 Wis. 2d at 681-82. The court of appeals dismissed the other grounds Saenz advanced to support this sec. 1983 action, and Saenz does not seek review in this court of that part of the court of appeals decision.

One issue is present on this review: whether the defendants denied Saenz his constitutional right to call witnesses at his inmate disciplinary hearing. We hold that as a matter of law the defendants did not deny Saenz his right to call witnesses because Saenz waived his right to do so by walking out of his disciplinary hearing without objecting to the lack of witnesses.² Accordingly, the circuit court properly granted summary judgment to the defendants.

The facts relevant to this review are not in dispute. On November 7, 1987, Saenz, while he was an inmate of the Columbia Correctional Institution (CCI), was involved in an altercation with a correctional officer. On November 10, 1987, Saenz was charged with offenses arising out of the November 7 altercation and was served with a Notice of Major Disciplinary Hearing Rights regarding those offenses, which advised Saenz that a staff advocate was appointed to represent him at the inmate disciplinary hearing.

On his Request for Attendance of Witnesses, dated November 11, 1987, Saenz requested that Dr. Eugene Strangman,³ a CCI employee, appear at his disciplinary hearing. The security director noted on Saenz's request for witnesses, "Advocate will receive statement. The doctor will not be available for testimony."

On November 19,1987, Saenz's disciplinary hearing was held before the adjustment committee (the committee). The committee consisted of defendants Colleen James and Marv Prieve. Saenz told the committee, "I plead not guilty, my due process is being violated, I never received notice of the hearing." The committee found Saenz guilty and sentenced him to 10 days' cell confinement and 60 days' program segregation. The committee stated, in relevant part, the following reason for its decision: " [I]nmate reftised to give committee any information, got up and proceeded out of the hearing room. Therefore committee had to totally rely on statements in conduct report."

On November 21, 1987, Saenz sought review of the committee's decision by filing an Appeal of Adjustment Committee or Hearing Officer's Decision. In said appeal form, Saenz stated the following reason for appealing the committee's finding of guilt:

I was denied the right to have a witness at my hearing without a reason set forth in the record as to why my witness would not be available for testimony which is required by HSS 303.81. Prior to the hearing I was never notify [sic] of the date, time and place of the hearing. 'Notice of Major Disciplinary Hearing Rights.' I inform [sic] the committee I was not prepare [sic].

The committee's finding of guilt was affirmed on December 4, 1987, by defendant James P. Murphy, the superintendent at CCI.

Saenz commenced a sec. 1983 action against James P. Murphy, Colleen James, and Marv Prieve (the defendants) on January 13, 1988, alleging, inter alia,4 that the defendants violated his constitutional right to call witnesses by failing to either produce Dr. Strangman at the disciplinary hearing or obtain a written statement from the doctor and explain why he could not appear in person. The defendants subsequently filed a motion for summary judgment against Saenz, arguing that the disciplinary hearing afforded Saenz due process because it provided him with a meaningful opportunity to be heard on the charges lodged against him. The defendants further argued that Saenz's right to call witnesses was not violated because, pursuant to Wis. Admin. Code sec. HSS 303.81(5) (April 1985), provision was made to obtain Dr. Strangman's statement when it was determined that he could not attend the hearing.

In opposition to the motion for summary judgment, Saenz relied upon Wolff v. McDonnell, 418 U.S. 539 (1974), and Wis. Admin. Code secs. HSS 303.81(2)-(5) and (7) (April 1985).⁵ Saenz argued that under Wolff he had a constitutional right to have Dr. Strangman present at his disciplinary hearing as a witness unless the doctor's presence would be unduly hazardous to institutional safety or correctional goals. Saenz further argued that the Wisconsin Administrative Code sections cited above recognize his constitutional right to call witnesses.

The circuit court considered the defendants' motion for summary judgment on briefs. By order dated October 27, 1988, the circuit court granted summary judgment to all the defendants, dismissing the complaint filed against them. In granting the motion, the circuit court ruled that Saenz was accorded due process of law under Hewitt v. Helms, 459 U.S. 460, 476 (1983), because he "was given notice of the charges against him, was given an opportunity to respond, and the evidence was reviewed by a decisionmaker." Accordingly, the circuit court concluded that Saenz did not have a sec. 1983 claim against the defendants.

Saenz appealed from the order of the circuit court dismissing the action. Saenz and the defendants essentially presented the same arguments to the court of appeals that they presented to the circuit court.

The court of appeals held that Saenz's constitutional right to call witnesses under Wolff was violated because Dr. Strangman was not present at the hearing, and the defendants did not claim that his presence at the hearing as a witness would have been unduly hazardous to institutional safety or correctional goals. The court of appeals further held that the substitution of a signed statement for the testimony of an unavailable witness satisfies Wolff s requirement that an inmate be allowed to call witnesses at a disciplinary hearing. However, the court of appeals noted the record does not contain a statement from Dr. Strangman in the disciplinary hearing exhibits or any evidence that the hearing officer attempted to obtain a signed statement from Dr. Strangman as required by Wis. Admin. Code sec. HSS 303.81(4). Accordingly, the court of appeals concluded that Saenz was entitled to judgment on his sec. 1983 claim and remanded the action for a trial on damages only. Saenz, 153 Wis. 2d at 681-82.

The defendants petitioned this court for review of the decision of the court of appeals, which we granted.

This court applies the standards set forth in sec. 802.08(2), Stats., in the same manner as the circuit court when it reviews the grant of a motion for summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). A court employs a standard two-step procedure when evaluating the propriety of a motion for summary judgment. First, it examines the pleadings to determine if a claim for relief has been stated. Second, if a claim for relief has been stated, the court determines if there are any triable issues of material fact which preclude the grant of summary judgment. Id. at 314-15. If there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be granted. Section 802.08(2), Stats.

Saenz's complaint does state a claim for relief because it alleges that, despite Saenz's request that Dr. Strangman be called as a witness at his disciplinary hearing, Dr. Strangman was not present at the disciplinary hearing, and a signed, written statement was not provided in lieu of the doctor's personal appearance. Those factual allegations state a claim for relief under sec. 1983 because, if they are proven at trial, they constitute a deprivation of due process under Wolff, 418 U.S. at 566-67.⁶ However, the record shows that the defendants are entitled to summary judgment as a matter of law because Saenz waived his right to call Dr. Strangman as a witness.

Generally, an issue is waived if it is not raised before the trier of fact. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). In the case at bar, the trier of fact at the disciplinary hearing was the adjustment committee. Saenz did not, before the adjustment committee, object to the fact that Dr. Strangman was not present at the hearing nor was his signed, written statement available. At the disciplinary hearing, Saenz only objected to the notice, or alleged lack thereof, he had of the hearing before he walked out of the hearing.⁷ The court of appeals dismissed Saenz's claim of inadequate notice, and Saenz did not seek review of that dismissal in this court.

Furthermore, at oral argument before this court Saenz's counsel appeared to concede that Saenz did not know when he walked out of the disciplinary hearing if the adjustment committee possessed a signed, written statement from Dr. Strangman. The record supports this apparent concession; it is undisputed that Saenz walked out of the hearing room after he refused to give the adjustment committee any information other than his objection based on lack of notice. Accordingly, we conclude that Saenz waived his right to call Dr. Strangman as a witness.

In reaching this conclusion, we recognize that the state has the burden in prisoner disciplinary proceedings to prove that the prisoner committed some legally cognizable wrong and the duty to produce at the prisoner's disciplinary hearing the witnesses requested by the prisoner or their signed, written statements. In the case at bar, this court cannot ascertain from the record whether the state failed to fulfill its duty to produce Dr. Strangman's signed, written statement. However, any error committed by the state was waived by Saenz when he walked out of the disciplinary hearing without objecting to the absence of Dr. Strangman or his signed, written statement.

Contrary to the dissent's assertion, Saenz's waiver is effective even if it did not constitute a voluntary and intelligent waiver. Dissenting op. at 69, 469 N.W.2d at 618. The only authority the dissent cites to support its assertion, Faust v. Ladysmith-Hawkins School Systems, 88 Wis. 2d 525, 532-33, 277 N.W.2d 303 (1979), is not applicable to the case at bar for two reasons. First, Faust dealt with the statutory rights of teachers when their contracts are not renewed, id. at 532, not the due process rights of prisoners, who do not enjoy the "full panoply of rights due a defendant" in criminal proceedings. Wolff, 418 U.S. at 556. Second, in response to a motion for reconsideration in Faust, we stated that'' [o]ur holding is confined to the facts in the case of Kristina L. Faust." Faust, 88 Wis. 2d at 537. Therefore, the general rule of waiver of error set forth in Wirth applies to the case at bar.

Furthermore, contrary to the dissent's assertion, Saenz's administrative appeal did not cure his waiver for two reasons. First, raising his objection in the appeal of the adjustment committee's decision constitutes raising an issue for the first time on appeal.

Second, Saenz's administrative appeal relied upon issues that are not before this court. In his administrative appeal, Saenz based his due process claim on two points. First, he claimed he was not given adequate notice of the hearing. Second, the hearing officer did not record the reason why Dr. Strangman was not available for the hearing. The court of appeals rejected both points as a basis for Saenz's sec. 1983 claim, and Saenz did not seek review of that part of the court of appeals decision in this court.

In this court, Saenz does not base his claim on the fact that the hearing officer did not record the reason why Dr. Strangman was not available for the disciplinary hearing. Instead, Saenz argues that the failure of Dr. Strangman to appear personally or by a signed, written statement at the disciplinary hearing violates his due process rights as defined by Wolff because the defendants do not claim that Dr. Strangman's appearance would be "unduly hazardous to institutional safety or correctional goals." Wolff, 418 U.S. at 566.

In other words, Saenz has shifted the basis for his claim from the lack of an explanation for Dr. Strangman's failure to appear at the hearing (Saenz's position in his administrative appeal) to Dr. Strangman's failure to appear itself (Saenz's position in this court). Therefore, Saenz never raised the only basis for his sec. 1983 claim in the prison disciplinary process: Dr. Strangman's failure to appear at the disciplinary hearing given the lack of a constitutionally permissible reason for his absence. Accordingly, we must conclude that he waived that issue.

It is appropriate to apply the principle of waiver to sec. 1983 claims brought by prison inmates because the principle of waiver is supported by the same reasons which have motivated courts to require inmates to exhaust their administrative remedies before they may commence a sec. 1983 action. See Staples v. Young, 149 Wis. 2d 80, 87 n.9, 438 N.W.2d 567 (1989) (citing McKeever v. Israel, 476 F. Supp. 1370 (E.D. Wis. 1979)); Secret v. Brierton, 584 F.2d 823, 828-29 (7th Cir. 1978). In Brierton, the court reasoned that requiring inmates to exhaust prison grievance procedures before they may commence sec. 1983 actions promotes the speedy resolution of disputes and avoids wasteful litigation. Id. at 828. For example, the Brierton court noted that prison grievance procedures in many cases can provide prisoners with adequate remedies for deprivations of their rights. Id. Similarly, requiring parties to raise issues before the trier of fact assists the administration of justice by avoiding wasteful proceedings on appeal and/or remand to resolve matters that could have been resolved in previous proceedings. Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1130, 1134-35 (1986); see generally Air Wisconsin, Inc. v. North Central Airlines, Inc., 98 Wis. 2d 301, 311, 296 N.W.2d 749 (1980).

If Saenz can be required to exhaust his administrative remedies before bringing a sec. 1983 action, he can be required to object to an alleged violation of his due process rights before the adjustment committee. Such an objection would have allowed the committee to adjourn until it could produce Dr. Strangman or his signed, written statement. Furthermore, if Saenz had made such an objection in his administrative appeal to defendant Murphy, it would have given defendant Murphy an opportunity to remand the matter to the adjustment hearing for further proceedings, including the presentation of Dr. Strangman's testimony or signed, written statement.

The record shows that Saenz waived his right to call Dr. Strangman as a witness. Moreover, given the fact that Saenz never objected during the prison disciplinary process to the absence of Dr. Strangman or his statement at the disciplinary hearing, Saenz not only waived his right to call Dr. Strangman, but he also failed to exhaust his administrative remedies. Accordingly, we conclude that the circuit court properly ruled that the defendants were entitled to judgment as a matter of law.

By the Court. — The decision of the court of appeals is reversed.

CHIEF JUSTICE NATHAN S. HEFFERNAN did not participate. JUSTICE WILLIAM A. BABLITCH took no part.

1 42 U.S.C. sec. 1983 provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

2 The parties did not frame the issues of this case to include the issue of waiver. However, this court is not bound by the issues as they are framed by the parties. Bielski v. Schulze, 16 Wis. 2d 1, 6, 114 N.W.2d 105 (1962). Moreover, the issue of waiver was discussed extensively at oral argument by both parties after the court raised the issue.

3 The record shows that Dr. Strangman holds a Ph.D.

4 The other allegations contained in the complaint are not relevant to the issue before this court. This opinion only discusses those portions of the proceedings which occurred below that are relevant to the issue before the court.

5 Chapter HSS 303 was renumbered ch. DOC 303 and revised under sec. 13.93(2m)(b)l, 2, 4 to 7, Stats., Register, April, 1990, No. 412. Throughout this opinion, references to the Wisconsin Administrative Code will be to ch. HSS 303 (April 1985).

Wis. Admin. Code secs. HSS 303.81 (2)-(5) and (7) provide as follows:

HSS 303.81 Due process hearing: witnesses. . . .

(2) After all witness requests have been received, the hearing officer shall review them and do any investigation necessary to determine whether the witnesses should be called. The hearing officer may only call witnesses who possess relevant information. If a witness refases to appear, the hearing officer shall determine if the refusal is justified. If the refusal is justified, the hearing officer shall note on the record the reason for the witness' refusal to appear.

(3) Witnesses requested by the accused who are staff or inmates shall attend the disciplinary hearing unless:

(a) There is a significant risk of bodily harm to the witness if he or she testifies; or

(b) The witness is an inmate who does not want to testify; or

(c) The testimony is irrelevant to the question of guilt or innocence; or

(d) The testimony is merely cumulative of other evidence and would unduly prolong the hearing; or

(e) An inmate witness must be transported to a county jail to testify, in which case the advocate may be required to interview the witness and report on the testimony to the committee in lieu of a personal appearance by the witness.

(4) If an inmate witness will be unavailable due to hospitalization, transfer or release, or if a staff member witness, who may be the officer who reported the rule violation, will be unavailable due to illness, no longer being employed at the location, being on vacation or being on a different shift, but there is no other reason to exclude the witness's testimony under sub. (3), then the hearing officer shall attempt to get a signed statement from the witness to be used at the disciplinary hearing.

(5) If a witness's testimony would be relevant and useful to the adjustment committee but the witness does not wish to testify, or if testifying would pose a significant risk of bodily harm to the witness, the hearing officer may attempt to get a signed statement to be used at the disciplinary hearing. See HSS 303.86, Evidence, for the circumstances under which the adjustment committee can consider such a statement without revealing the name of the witness.

(7) After determining which witnesses will be called for the accused, the hearing officer shall notify the inmate of the decision in writing and schedule a time for a hearing when all of the following people can be present:

(e) Accused; and

(f) Witnesses for accused (if any).

6 Saenz's complaint also contained the required allegation that he had exhausted his administrative remedies. See Staples v. Young, 149 Wis. 2d 80, 87 n.9, 438 N.W.2d 567 (1989).

7 We do not hold or imply that Saenz should have made an offer of proof because the disciplinary process in correctional institutions may not afford inmates with the opportunity to consult with their witnesses prior to their disciplinary hearing. Accordingly, an inmate may not be able to ascertain what is needed to make an offer of proof: the content of his proposed witness's testimony. Moreover, it is unrealistic to expect a prison inmate to understand sophisticated concepts such as offers of proof. A prison inmate such as Saenz need only object in some intelligible manner that the witness he requested is not present at his disciplinary hearing in order to preserve that error for collateral review in a sec. 1983 action.