Witmer v. NEBRASKA DEPT. OF CORR. SERVICES

691 N.W.2d 185, 13 Neb. Ct. App. 297
CourtNebraska Court of Appeals
DecidedJanuary 25, 2005
DocketA-03-867
StatusPublished

This text of 691 N.W.2d 185 (Witmer v. NEBRASKA DEPT. OF CORR. SERVICES) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Witmer v. NEBRASKA DEPT. OF CORR. SERVICES, 691 N.W.2d 185, 13 Neb. Ct. App. 297 (Neb. Ct. App. 2005).

Opinion

691 N.W.2d 185 (2005)
13 Neb. App. 297

Jason N. WITMER, appellee,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, appellant.

No. A-03-867.

Court of Appeals of Nebraska.

January 25, 2005.

*187 Jon Bruning, Attorney General, and Maureen Hannon for appellant.

Jason N. Witmer, pro se.

SIEVERS, MOORE, and CASSEL, Judges.

SIEVERS, Judge.

INTRODUCTION

The Nebraska Department of Correctional Services (DCS) appeals the order of the Johnson County District Court reversing the decision of the DCS Appeals Board (Appeals Board), which affirmed the decision of the Institutional Disciplinary Committee (IDC) finding Jason N. Witmer guilty of violating a DCS rule for "Aggravated Assault/Assault/Fighting" and sanctioning Witmer by imposing 60 days' disciplinary segregation.

FACTUAL AND PROCEDURAL BACKGROUND

On February 4, 2003, inmate Witmer was involved in an altercation with inmate Christopher Johnson at the Tecumseh State Correctional Institution. Witmer was working in the kitchen when he removed the grate covering the dishwasher drain so that he could clean it off. According to Witmer's testimony before the IDC, Johnson "got mad `cause I was messing up his area and we got into a fight." Witmer denies hitting Johnson with the grate. However, Lt. Michelle Janda stated in her incident report that the grate had blood on it and that it "appeared to have been used by inmate Witmer to hit inmate Johnson." On the day of the incident, a Corporal Cole filed a misconduct report against Witmer, alleging that Witmer had violated DCS rules 5-I-C, aggravated assault/assault/fighting; 5-II-E, disobeying a direct order; 5-III-A, flare of tempers/minor physical contact; and 5-II-H, use of threatening language or gestures/fighting. A hearing was held before an investigating officer on February 7.

On February 19, 2003, Witmer appeared before the IDC. The IDC found Witmer guilty of aggravated assault/assault/fighting because "[Witmer] admits to fighting with another inmate, which caused serious bodily injury, which required physician[']s attention as a result of injuries received during altercation." Witmer received 60 days' disciplinary segregation. The IDC found that the incident was "serious" because a physician needed to come to the institution and render medical attention and because the incident "jeopardized safety [and] security in this maximum security prison."

Witmer appealed the IDC's decision to the Appeals Board. The Appeals Board assessed Witmer's argument to be that the incident was not serious enough to be considered aggravated assault because there was no "serious bodily injury." He also argued that he was prejudiced because he had no notice he was being accused of using a weapon "until the Hearing Officer accused him" and that he was unable to prepare a defense. Upon reviewing the record, the Appeals Board found sufficient evidence to support the IDC's decision. The Appeals Board stated that the incident report by the attending registered *188 nurse indicated that Johnson "sustained multiple lacerations to the head, face, hand and fingers along with contusions." And, the incident report by Lieutenant Janda stated that a physician was called in to suture Johnson's injuries. The Appeals Board agreed that such evidence was sufficient to find that Johnson incurred serious bodily injury as a result of the fight. Therefore, the Appeals Board affirmed the IDC's decision.

Pursuant to the Administrative Procedure Act, Witmer then appealed to the district court, which reversed the decision of the Appeals Board after finding there was "insufficient evidence" to support the charge because there was no "serious bodily injury" as defined by Neb.Rev.Stat. § 28-109 (Cum.Supp.2004). DCS timely appeals to this court.

ASSIGNMENTS OF ERROR

On appeal, DCS contends that the district court erred in "reversing the decision of the ... Appeals Board because [the court] determined that there was no substantial evidence to support a finding of serious bodily injury."

STANDARD OF REVIEW

Under Neb.Rev.Stat. § 84-917(5)(a) (Reissue 1999), when a petition instituting proceedings for review under the Administrative Procedure Act is filed in the district court on or after July 1, 1989, the review shall be conducted by the court without a jury de novo on the record of the agency. Miller v. Horton, 253 Neb. 1009, 574 N.W.2d 112 (1998).

A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Barnes v. Nebraska Dept. of Corr. Servs., 12 Neb.App. 453, 676 N.W.2d 385 (2004). See Neb.Rev.Stat. § 84-918(3) (Reissue 1999). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. To the extent that the meaning and interpretation of statutes and regulations are involved, questions of law are presented, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. City of Omaha v. Kum & Go, 263 Neb. 724, 642 N.W.2d 154 (2002).

ANALYSIS

In reversing the decision of the Appeals Board, the trial court found that "[t]he standard of proof to sustain a charge of violating a DCS rule is substantial evidence." Neb.Rev.Stat. § 83-4,122 (Reissue 1999) provides that in prison disciplinary cases which involve the imposition of disciplinary isolation or the loss of good-time credit, the standard of proof to sustain the charge shall be substantial evidence. See, also, Dailey v. Nebraska Dept. of Corr. Servs., 6 Neb.App. 919, 578 N.W.2d 869 (1998). Because Witmer was sanctioned to disciplinary segregation, the applicable standard of proof is substantial evidence, which has been defined as"' "[e]vidence which a reasoning mind would accept as sufficient to support a particular conclusion and consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance."'" See id. at 925, 578 N.W.2d at 874.

We take this opportunity to point out that in our opinion, the decisions in Baxter v. Nebraska Dept. of Corr. Servs., 11 Neb.App. 842, 663 N.W.2d 136 (2003), and *189 Claypool v. Nebraska Dept. of Corr. Servs., 12 Neb.App.

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Related

Dailey v. Nebraska Department of Correctional Services
578 N.W.2d 869 (Nebraska Court of Appeals, 1998)
City of Omaha v. Kum & Go, L.L.C.
642 N.W.2d 154 (Nebraska Supreme Court, 2002)
Baxter v. Nebraska Department of Correctional Services
663 N.W.2d 136 (Nebraska Court of Appeals, 2003)
Miller v. Horton
574 N.W.2d 112 (Nebraska Supreme Court, 1998)
Sepulveda v. Nebraska Department of Correctional Services
609 N.W.2d 42 (Nebraska Court of Appeals, 2000)
Claypool v. Nebraska Department of Correctional Services
667 N.W.2d 267 (Nebraska Court of Appeals, 2003)
Barnes v. Nebraska Department of Correctional Services
676 N.W.2d 385 (Nebraska Court of Appeals, 2004)
Witmer v. Nebraska Department of Correctional Services
691 N.W.2d 185 (Nebraska Court of Appeals, 2005)

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Bluebook (online)
691 N.W.2d 185, 13 Neb. Ct. App. 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witmer-v-nebraska-dept-of-corr-services-nebctapp-2005.