In re Marti (Cal. Ct. App., Sept. 3, 2021, No. C093153) 2021 WL 4452824, at *1
Summary: CDCR Prisoner Marti filed a petition for writ of habeas corpus challenging the decision finding him guilty of a prison disciplinary violation for possession of excess property made by the warden of Mule Creek State Prison. Marti was found guilty of an administrative violation rather than a serious rules violation. Marti claims his rights under prison regulations were violated because the officer who heard the violation had prior knowledge and involvement in a matter that was used as evidence at Mart’s disciplinary hearing.
CDCR argues this case is moot because Marti has already incurred the punishment for the decision and any future impact on him is speculative. Because the court can afford meaningful relief, the case is not moot. Without court intervention, the violation would remain in Mart’s file and may be considered by prison officials in making decisions relating to him. Prison regulations provide for its consideration in imposing subsequent discipline. The violation may also factor into other prison decisions. The hearing officer should have been recused. Marti is entitled to have the officer’s disciplinary finding vacated.
May 5, 2019, Rules Violation Report
On May 5, 2019, Martri was issued a rules violation report for possession of excess property. The disciplinary report noted that the same Correctional Officer Brown had conducted a prior search “Additionally, on Monday January 14, 2019, I conducted a Dorm search in E21-D-206 and at the conclusion of my search I gave (Marti) a verbal counseling about having excessive amounts of personal property and ordered him to bring himself into compliance with Property Limits outlined in Departmental policy.”
Interview with hearing officer over prior search
Marti had filed a CDCR Form 22 inmate request for interview regarding the property seized on May 5, 2019 and met with Sgt. Rhode, Brown’s supervisor, in person on May 30, 2019. Rhode submitted a declaration stating that the purposes of the Form 22 procedure is to allow inmates a means of requesting interviews and services that are not part of the disciplinary process. Marri stated that Rhode discussed the matter extensively and that their discussion included the January search as well.
The disciplinary hearing was held on June 8, 2019 and Sergeant Rhode served as the hearing officer. y.
Sergeant Rhode found petitioner guilty of the violation as charged. Rhode explained that it was based on the cell search receipts documenting excess property taken on January 14, 2019, the fact that reporting Officer Brown stated he advised petitioner by receipt and verbally about the excess property at that time, and the evidence concerning the May 5, 2019, search. Rhode imposed a 30-day loss of yard recreation privileges as a penalty and advised petitioner of his right to administrative appeal.
Marti claims that Sergeant Rhode should not have served as the hearing officer based on his earlier involvement in reviewing the January 14, 2019, search.
Marti filed an administrative appeal of the June 8, 2019, disciplinary finding, and he exhausted the administrative remedies. He filed a petition for writ of habeas corpus in the superior court, which was denied. He then sought relief in this court by petition for writ of habeas corpus, and this court issued an order to show cause returnable in the superior court. The superior court again denied relief, finding the petition was moot and that the issues presented did not implicate petitioner’s constitutional due process rights. Marti promptly filed the current petition for writ of habeas corpus in this court on December 9, 2020.
Cognizability Of Claim on Habeas And Mootness
CDCR argued that Marti cannot claim a violation of his constitutional due process rights because of the lack of impact on credits affecting his eligibility for parole and because the prison decision does not constitute an atypical and significant hardship. Habeas corpus may be used to broadly vindicate rights in confinement, including “not only statutory or constitutional violations, but also violations of administrative regulations.” (Gomez v. Superior Court (2012) 54 Cal.4th 293, 309, fn. 10, 142 Cal.Rptr.3d 808, 278 P.3d 1168.)
“A case is moot when the reviewing court cannot provide the parties with practical, effectual relief.” (City of San Jose v. International Assn. of Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 417, 100 Cal.Rptr.3d 396.) Courts decide justiciable controversies and do not normally render merely advisory opinions. (Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178-1179, 49 Cal.Rptr.3d 825.) The court may dispose of a habeas petition in the manner justice requires, with the flexibility to correct miscarriages of justice. (In re Brindle (1979) 91 Cal.App.3d 660, 669-670, 154 Cal.Rptr. 563.) Habeas corpus may even be used to secure a declaration of a petitioner’s rights. (Ibid.)
Prison regulations do not allow administrative violations to be used in calculating a prisoner’s score for classification purposes. (See Cal. Code Regs.,2 tit. 15, § 3375.4, subd. (b)(1)(A).) But the adjudication remains in his file and may be considered in the future, for example for purposes of classifying another violation as serious or administrative. (Tit. 15, §§ 3315, subd. (a)(2)(M), 3326.) CDCR uses a progressive disciplinary system, in which misconduct that is minor may result in verbal counseling achieving corrective action. (Tit. 15, § 3312, subd. (a)(1).) Other minor misconduct may be subject to a written counseling chrono that does not subject the inmate to discipline. (Tit. 15, § 3312, subd. (a)(2).) Imposition of formal discipline will impact future decisions to impose discipline on Marti. Marti could face additional consequences going forward from the disciplinary adjudication.
Parole consideration would be an obvious decision that might typically be impacted if An administrative violation may be referred to a classification committee for consideration if an inmate is determined to be a “program failure.” (Tit. 15, § 3314, subd. (i).)
Improper to have officer involved in the incident act as hearing officer
Rhode cited the January search and Brown’s claim that he warned petitioner about excess property as evidence in his decision. Section 3320, subdivision (h) of title 15 provides: “Staff who observed, reported, classified, supplied supplemental reports to, or investigated the alleged rule violation; who assisted the inmate in preparing for the hearing; or for any other reason have a predetermined belief of the inmate’s guilt or innocence shall not hear the charges or be present during deliberations to determine guilt or innocence and disposition of the charges.” Penal Code section 2932, subdivision (c)(1)(A) provides some context for the regulation at issue. Although the statute specifically refers to “serious disciplinary infractions” rather than administrative violations, as here, the provision that a hearing officer be “an individual who shall be independent of the case” reasonably applies to all hearings.
The January reviewed by Rhode and the underlying search was referenced when Marti was found guilty of the the violation.
There is some evidence that Rhode “investigated” evidence directly relevant to adjudication of the violation at issue here. This falls within the provision of title 15, section 3320, subdivision (h), referring to: “Staff who observed, reported, classified, supplied supplemental reports to, or investigated the alleged rule violation ….” Moreover, his conduct unequivocally meets the catchall provision in the same regulation. Rhode’s involvement in reviewing the January report that was central to adjudication of the violation at issue coupled with the other facts is such that “for any other reason,” one can reasonably conclude he had “a predetermined belief of the inmate’s guilt or innocence” of an administrative rules violation. (Ibid.)
The disciplinary adjudication of June 8, 2019, was reversed and CDCR was directed to remove the record of this adjudication from Mari’s central file.