IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2016-CP HENRY HINTON APPELLANT BRIAN LADNER APPELLEE

Transcription

1 E-Filed Document May :48: CP Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2016-CP HENRY HINTON APPELLANT v. BRIAN LADNER APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI BRIEF OF APPELLEE ANTHONY L. SCHMIDT, JR. MSB # MDOC STAFF ATTORNEY 633 NORTH STATE STREET, SUITE 522 JACKSON, MISSISSIPPI PH: (601) FAX: (601) ASCHMIDT@MDOC.STATE.MS.US

2 CERTIFICATE OF INTERESTED PARTIES THE UNDERSIGNED counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this Court may evaluate possible disqualifications or recusal. 1. Henry Hinton Inmate # 46761, Appellant 2. Brian Ladner, Mississippi Department of Corrections 3. Honorable Steve Ratcliff III, Circuit Court Judge, 20th District 4. Jim Hood, Attorney General THE UNDERSIGNED counsel further certifies that the following attorneys have an interest in the outcome of this case: For Appellee: 1. Anthony L. Schmidt, Jr., MDOC Staff Attorney 2. Darrell Baughn, Attorney, Mississippi Department of Corrections SO CERTIFIED this 2nd day of May, BY:_s/Anthony L. Schmidt, Jr. ANTHONY L. SCHMIDT, JR. MSB # MDOC STAFF ATTORNEY 633 NORTH STATE STREET, SUITE 522 JACKSON, MISSISSIPPI PH: (601) FAX: (601) ASCHMIDT@MDOC.STATE.MS.US ii

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITES... iv STATEMENT OF ISSUES...1 STATEMENT OF THE CASE...2 SUMMARY OF THE ARGUMENT...3 ARGUMENT...3 I. The decision of MDOC regarding Hinton s ARPs were supported by substantial evidence, were not arbitrary or capricious, were not beyond the agency s scope or powers, and did not violate his constitutional or statutory rights....3 II. Hinton has received sufficient due process....5 CONCLUSION...6 CERTIFICATE OF SERVICE...8 iii

4 Cases TABLE OF AUTHORITES Brady v. Hollins, 192 So.3d 1066 (Miss. Ct. App. 2016)...6 Edwards v. Booker, 769 So.2d 991 (Miss. 2001)...3, 6 Leavitt v. Carter, 178 So.3d 334 (Miss. Ct. App. 2012)...6 Miss. Dept. of Corr. v. Smith, 883 So.2d 124 (Miss. Ct. App. 2004)...4 Miss. Dept. of Transp. v. Rutland, 965 So.2d 696 (Miss. 2007)...4 Mixon v. Enlers, 90 So.3d 635 (Miss. Ct. App. 2012)...6 Nelson v. Bingham, 116 So.3d 172 (Miss. Ct. App. 2012)...4 Ross v. Epps, 922 So.2d 847 (Miss Ct. App. 2006)...3 Smith v. Wesley, 157 So.3d 860 (Miss. Ct. App. 2015)...3 State Bd. of Pub. Accountancy v. Gray, 674 So.2d 1251 (Miss. 1996)...3 Taylor v. Petrie, 41 So.3d 724 (Miss. Ct. App. 2010)...3 Warpole v. Hill, 472 U.S. 445 (1985)...4 Statutes Miss. Code Ann (1972, as amended)...3 iv

5 STATEMENT OF ISSUES I. Whether the decision of MDOC regarding Hinton s ARPs were supported by substantial evidence, were arbitrary or capricious, were beyond the agency s scope or powers, or violative of his constitutional or statutory rights. II. Whether Hinton has received sufficient due process. 1

6 STATEMENT OF THE CASE Appellant, Henry Hinton ( Hinton ), is an inmate in the custody of the Mississippi Department of Corrections ( MDOC ). He is confined at Mississippi State Penitentiary ( MSP ). In October of 2015, Hinton was convicted in the Circuit Court of Pike County, Mississippi for three (3) counts of possession of controlled substance with intent to distribute and one (1) count of attempting to obtain a controlled substance. (R. at 53.) Hinton was sentenced to serve three (3) five (5) year terms and one (1) three (3) year term for his convictions all running concurrently. (R. at 53.) Hinton first filed his first grievance with MDOC s Administrative Remedy Program ( ARP ) on March 14, (R. at 81.) The basis of Hinton s appeal involves Rule Violation Report ( RVR ) # issued on February 27, 2016, in which he verbally engaged in bribery with a correctional officer. See (R. at 54.) Hinton also appealed RVR # , issued on February 27, 2016 in which he pursued a relationship with a correctional officer. See (R. at 46.) Hinton was present and found guilty on both RVR s at his disciplinary hearing which occurred on March 2, (R. at 54.) Hinton s punishment was a loss of all privileges for one (1) month. (R. at 50, 60.) Hinton received and acknowledged MDOC s decision on April 7, (R. at 94). On May 5, 2016 Hinton appealed MDOC s ARP decision to the Circuit Court of Rankin County, Mississippi. (R. at 4.) On October 4, 2016, the Circuit Court of the Rankin County, Mississippi subsequently entered an Order affirming MDOC s decision (R. at 196.) Hinton subsequently filed his Notice of Appeal on October 14, 2016 before this Honorable Court. (R. at 202.) 2

7 SUMMARY OF THE ARGUMENT MDOC s decisions through the ARP process upholding Hinton s RVRs were supported by substantial evidence, were not arbitrary or capricious, were not beyond the agency s scope or powers, and did not violate his constitutional or statutory rights. Hinton admitted and does not contest writing the note. Furthermore Hinton was not denied due process. The decision of the Circuit Court of Rankin County, Mississippi upholding MDOC s decision should be affirmed. ARGUMENT I. The decision of MDOC regarding Hinton s ARPs were supported by substantial evidence, were not arbitrary or capricious, were not beyond the agency s scope or powers, and did not violate his constitutional or statutory rights. The circumstances surrounding the decision of MDOC regarding Hinton s ARPs were based upon significant findings. The decision of an administrative agency, such as the MDOC, will not be disturbed unless the decision is unsupported by substantial evidence, arbitrary or capricious, beyond the agency's scope or powers, or violative of the constitutional or statutory rights of the aggrieved party. Taylor v. Petrie, 41 So.3d 724, 727 (Miss. Ct. App. 2010) (citing Edwards v. Booker, 796 So.2d 991, 994 (Miss. 2001)). There is a rebuttable presumption which favors the agency s decision and the challenging party has the burden of proving the contrary. Ross v. Epps, 922 So.2d 847 (Miss Ct. App. 2006) (citing State Bd. of Pub. Accountancy v. Gray, 674 So.2d 1251 (Miss. 1996)); See also Smith v. Wesley, 157 So.3d 860, 862 (Miss. Ct. App. 2015). Miss. Code Ann (2), requires a prisoner appealing an MDOC administrative decision to exhaust all administrative remedies prior to petitioning the circuit court to 3

8 reverse the MDOC's decision. Nelson v. Bingham, 116 So.3d 172, 174 (Miss. Ct. App. 2012). Prison disciplinary hearings are not subject to the same standard and burden as criminal proceedings. The general standard adopted regarding prison disciplinary proceedings requires some evidence to support the decision of prison administrators. See Warpole v. Hill, 472 U.S. 445, 455 (1985). Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. See Id. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See Id. at 456. Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. See Id. Furthermore MDOC s final stage of review through the ARP process is based upon substantial evidence, a standard that is not an especially large quantum. See Miss. Dept. of Transp. v. Rutland, 965 So.2d 696 (Miss. 2007) (citing Miss. Dept. of Corr. v. Smith, 883 So.2d 124, 129 (Miss. Ct. App. 2004)). Substantial evidence may be less than a preponderance, but must be more than a scintilla, and must be such that would make any conclusion based on that evidence a reasonable one. Id. Accordingly, there may be substantial evidence in the record to support one fact-finder's view, and in the same record substantial evidence to support the opposite view. Id. The nature of Hinton s appeal arises from a guilty disciplinary finding and affirmance through MDOC s ARP in RVR # and RVR # In these RVRs Hinton admitted to writing a note to a female correctional officer in the tower 4

9 stating: MDOC Policy allows your to bring food into the facility. Policy also allows you to dispose any unwanted portion you fail to consume. You maybe known as slim although you appear to eat well. Therefore any unwanted portion you don t want to consume, simple drop it in the box. I will be happy to dispose of it via the trash for you. No harm No foul. Quote of the day: An older man has learn, and has the ability to keep his mouth shut. (R. at 48.) Hinton further admits that, my thinking was if in the future if she received another pizza or any other food stuffs and if she wanted to dispose of it outside the tower, I would do it. My hidden motive was, I would sneak back and retrieve it. (R. at 11.) From his own admission it is obvious Hinton knew he was not supposed to engaging in such inappropriate communication with a female correctional officer as he further states, My reasoning for this was, if she gave me something such as pizza to the trash, I wouldn t rat her out to the Capt. (R. at 11.) In summary, Hinton was attempting through an elaborate scheme to bribe the female officer for her food and further engage in an inappropriate relationship that would compromise the safety and security of MDOC s facility. From the record, it is apparent the ARP decisions of MDOC were supported by substantial evidence, not arbitrary or capricious, not beyond the agency s scope or powers, and did not violate the constitutional or statutory rights of Hinton. The decision of the circuit court should be affirmed. II. Hinton has received sufficient due process. Hinton presented an argument after the completion of the ARP process that he did not retain his own copy of the RVRs and they were illegible. See (R. at 13, 81.) Hinton s claim after the fact clearly fails as he was given a copy of the forms prior to his 5

10 disciplinary hearing as well as given adequate notice. It is clear Hinton was made aware of the charge against him when he was issued the RVRs. See Mixon v. Enlers, 90 So.3d 635, 636 (Miss. Ct. App. 2012). Furthermore, Hinton s punishment was a mere loss of thirty (30) days of privileges, which clearly does not invoke a constitutional violation of due process. See Brady v. Hollins, 192 So.3d 1066, 1069 (Miss. Ct. App. 2016) (citing Mixon, 90 So.3d at 637). Hinton did no request any witnesses, nor did he request any evidence introduced at his hearing to refute his RVR. See (R. at 46, 54.) In fact, Hinton candidly admits to the violations. See Leavitt v. Carter, 178 So.3d 334, 343 (Miss. Ct. App. 2012) (citing Edwards, 769 So.2d 991). In essence, it is clear after Hinton committed the infractions, as he admitted to writing the note, did not request any witnesses and produced no evidence to refute the guard s written statement. The hearing officer considered his admission of writing the note and believed the correctional officer. See Mixon, 90 So.3d at 637. In consideration of these factors, Hinton s argument of procedural due process fails and the circuit court correctly affirmed MDOC s ARP decision. CONCLUSION MDOC s decisions through the ARP process upholding Hinton s RVRs were supported by substantial evidence, were not arbitrary or capricious, were not beyond the agency s scope or powers, and did not violate his constitutional or statutory rights. Hinton admitted to the underlying actions of his RVRs and requested no witnesses or evidence to refute his own claim. Furthermore Hinton was not denied due process as he was provided a fair and impartial disciplinary hearing which he attended. The decision of the Circuit Court of Rankin County, Mississippi upholding MDOC s decision should be 6

11 affirmed. Respectfully Submitted, BY: s/anthony L. Schmidt, Jr. ANTHONY L. SCHMIDT, JR. MSB # MDOC STAFF ATTORNEY 633 NORTH STATE STREET, SUITE 522 JACKSON, MISSISSIPPI PH: (601) FAX: (601)

12 CERTIFICATE OF SERVICE I, Anthony L. Schmidt, Jr., Staff Attorney for MDOC, do hereby certify that I have this day mailed, postage prepaid, a true and correct copy of the above and foregoing BRIEF FOR APPELLEE, to the following: Henry Hinton # MSP Unit 29 P.O Box 1057 Parchman, MS Honorable Steve Ratcliff III Circuit Court Judge, 20 th District P.O. Box 1689 Brandon, MS SO CERTIFIED this 2nd day of May, _s/anthony L. Schmidt, Jr. ANTHONY L. SCHMIDT, JR. MSB # MDOC STAFF ATTORNEY 633 NORTH STATE STREET, SUITE 522 JACKSON, MISSISSIPPI PH: (601) FAX: (601) ASCHMIDT@MDOC.STATE.MS.US 8