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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pease-Madore v. State, Dept. of Corrections (3/30/2018) sp-7232

Pease-Madore v. State, Dept. of Corrections (3/30/2018) sp-7232

           Notice:   This opinion is subject to correction before publication in the P                        ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                             

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                                

           corrections@akcourts.us.  



                        THE SUPREME COURT OF THE STATE OF ALASKA                                          



MATTHEW  PEASE-MADORE,                                                  )      Supreme  Court  Nos.  S-16279/16289/  

                                                                        )      16290  

                                  Appellant,                            )  

                                                                        )      Superior Court Nos. 3AN-15-05561/  

                                                                                                                                              

           v.                                                           )      05563/05564 CI  

                                                                                                       

                                                                        )  

STATE OF ALASKA,                                                        )      O P I N I O N  

                                                                                                    

DEPARTMENT OF CORRECTIONS,                                              )  

                                    

                                                                        )     No.7232 - March 30, 2018  

                                                                                                                    

                                  Appellee.                             )  

                                                                        )  



                      Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                                   

                       Judicial District, Anchorage, Kevin M. Saxby, Judge.  

                                                                                                      



                      Appearances:                 Jon   Buchholdt,   Buchholdt   Law   Offices,  

                                                                                                             

                      Anchorage,   for  Appellant.                         John   K.   Bodick,   Assistant  

                                                                                                           

                      Attorney           General,          Anchorage,             and      Jahna        Lindemuth,  

                                                                                                      

                      Attorney General, Juneau, for Appellee.  

                                                                          



                       Before:  Stowers, Chief Justice, Maassen, Bolger, and Carney,  

                                                                                                                

                       Justices.  [Winfree, Justice, not participating.]  

                                                                             



                       STOWERS, Chief Justice.  

                                                       



I.         INTRODUCTION  



                      A prisoner brings three appeals of prison disciplinary proceedings for major  



infractions.   The prisoner, representing himself, originally appealed to the superintendent  



and  subsequently  obtained  counsel  and  appealed  to  the  superior  court.  



                       In   Wolff  v.  McDonnell,  the  United  States  Supreme  Court  held  that  federal  



procedural   due   process   requires   "a   'written   statement   by   the   factfinders   as   to   the  


----------------------- Page 2-----------------------

                                                                                                        1  

evidence relied on and reasons' for the disciplinary action."                                               In  McGinnis v. Stevens                , this   



court held that due process under the Alaska Constitution requires a "verbatim record of                                                                 

                                                         2   The superior court concluded that the incident reports  

the [disciplinary] proceedings."                                                                                                                



and the audio recordings of the three disciplinary hearings satisfied due process, and  

                                                                                                                                                      



denied the three appeals. The prisoner argues on appeal to us that the McGinnis verbatim  

                                                                                                                                             



record requirement is in addition to and not in place of the  Wolff written statement  

                                                                                                                                           



requirement. He also argues that the written disciplinary decisions were inadequate and  

                                                                                                                                                      



could not incorporate the incident reports or be supplemented by the verbatim records  

                                                                                                                              



and that no showing of prejudice is required if the due process requirement set forth in  

                                                                                                                                                         



 Wolff is not met.  We affirm the superior court's decisions.  

                                                                                         



II.         FACTS AND PROCEEDINGS  

                                        



                        Matthew Pease-Madore filed nearly  a dozen administrative appeals of  

                                                                                                                                                        



prison disciplinary proceedings in the superior court; he filed three appeals from the  

                                                                                                                                                       



superior court's decisions in this court. These three appeals have been consolidated and  

                                                                                                                                                      



are the subject of this opinion.  The first of the three appeals relates to a November 17,  

                                                                                                                                                       



2014 incident in which he reportedly told an officer, "I'm not going to be in jail forever  

                                                                                                                                                



and it is going to be very interesting when I meet certain people on the streets."  Pease- 

                                                                                                                                                 



Madore was charged with making "threats to another of future bodily harm" in violation  

                                                                                                                                             

of 22 Alaska Administrative Code (AAC) 05.400(d)(6) (2004).3                                                             At his December 3  

                                                                                                                                      



            1           418  U.S.  539,  564  (1974)  (quoting  Morrissey  v.  Brewer ,  408  U.S.  471,  489  



(1972)).  



            2           543  P.2d   1221,   1236  (Alaska   1975).  



            3           22  AAC  05.400(d)(6)  lists  "threats  to  another  of  future  bodily  harm"  as  a  



low-moderate  infraction.  



                                                                           -2-                                                                     7232
  


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                                                                                                                                                                                    4  

disciplinary hearing regarding this incident,                                                                                                                                           he pleaded not guilty and testified that his                                                                                                                     



statement "wasn't meant in a threatening way."                                                                                                                                                      The officer testified that he "perceived                                                                            



it as a threat" and that he "[stood] by his report as it was written."  Pease-Madore was                                                      



found guilty and a penalty of 20 days in punitive segregation was imposed. He appealed                                                                                                                                                                                                                                           



to the superintendent, who denied the appeal.                                                                                                                



                                                       The second appeal relates to a November 19, 2014 incident in which Pease-                                                                                                                                                                                                           



Madore   reportedly   yelled   threats   and   taunts   to   other   prisoners,   including   graphic  



descriptions of rape. Thecorrectional                                                                                                                    officer's incident report noted that "[t]his behavior  



and yelling . . . had been going on all week" and Pease-Madore was charged with                                                                                                                                                                                                                                                                  



"[e]ngaging in a group or individual demonstration or activity that involves throwing of                                                                                                                                                                                                                                                                     



objects, loud yelling, loud verbal confrontation or pushing, shoving, or other physical                                                                                                                                                                                                                   



contact that interferes with the orderly administration of the facility" in violation of 22                                                                                                                                                                                                                                                               

                                                                                      5        At his December 3 disciplinary hearing regarding this second  

AAC 05.400(c)(15).                                                                                                                                                                                                                                                                                                                     



incident, Pease-Madore pleaded not guilty and argued that he was guilty of violating  

                                                                                                                                                                                                                                                                                                                                



subsection (d)(6), a lower-level infraction involving threats of future harm, rather than  

                                                                                                                                                                                                                                                                                                                                                   



(c)(15).  He also argued that it would not have been possible for the correctional officer  

                                                                                                                                                                                                                                                                                                                                          



to tell that he was the one creating the disturbance, but the officer testified that she  

                                                                                                                                                                                                                                                                                                                                                      



recognized his voice and that she and others saw and heard him.  Pease-Madore was  

                                                                                                                                                                                                                                                                                                                                                    



found guilty and penalties of 40 days in punitive segregation and the loss of 180 days of  

                                                                                                                                                                                                                                                                                                                                                             



good time were imposed.  He appealed to the superintendent, who granted partial relief,  

                                                                                                                                                                                                                                                                                                                                             



                            4                          The December 3 disciplinary hearings mentioned in this opinion were three                                                                                                                                                                                                                 



separate hearings, not one combined hearing.                                                                                                            



                            5                          22    AAC    05.400(c)(15)                                                                                      lists                   "engaging                                         in    a    group    or    individual  



demonstration or activity that involves throwing of objects, loud yelling, loud verbal                                                                                                                                                                                                                                                    

confrontation, or pushing, shoving, or other physical contact that disrupts or interferes                                                                                                                                                                                                                                     

with the orderly administration of the facility                                                                                                                                            " as a high-moderate infraction.                                                       



                                                                                                                                                                             -3-                                                                                                                                                                  7232
  


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 concurring with the guilty finding and retaining the loss of 180 days of good time but                                                                                                                                                                                                                                                           



reducing the punitive segregation from 40 to 20 days.                                                                                                                                                



                                                       The third appeal relates to a November 20, 2014 incident in which Pease-                                                                                                                                                                                                      



Madore reportedly told an officer, "You know what's funny? You guys won't even                                                                                                                                                                                                                                                             



know you are being victimized until it's too late." Pease-Madore was again charged with                                                                                                                                                                                                                                                       



making threats to another of future bodily harm in violation of 22 AAC 05.400(d)(6).                                                                                                                                                                                                                                                                               



At his December 3 disciplinary hearing regarding this third incident, he pleaded not                                                                                                                                                                                                                                                             



 guilty and argued that his statement was not threatening but funny.                                                                                                                                                                                                                   The correctional   



 officer testified at the hearing that he perceived it as a threat.                                                                                                                                                                                   Pease-Madore was found                                                           



 guilty and penalties of 20 days in punitive segregation and the loss of 90 days of good                                                                                                                                                                                                     



time were imposed.                                                                    He appealed to the superintendent, who granted partial relief,                                                                                                                                                                                  



 concurring with the guilty finding but reducing the penalties to 10 days in punitive                                                                                                                                                                                                                                        



 segregation and the loss of 45 days of good time.                                                                                                                                 



                                                       Pease-Madore                                                        subsequently                                                   obtained                                     counsel                                  and                      filed                       eleven  



 administrative appeals in superior court, arguing that his due process rights had been                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                         6 on the basis that the  

violated.  The superior court denied the three appeals in this case                                                                                                                                                                                                                                                                               



 incident reports and  the audio  recordings of the  disciplinary hearings satisfied  due  

                                                                                                                                                                                                                                                                                                                                               



process.  The court also found that he had shown no prejudice.  Pease-Madore appeals.  

                                                                                                                                                                                                                                                                                                                              



III.                        STANDARD OF REVIEW  

                                                                                                       



                                                       "Whether an inmate has received procedural due process is an issue of  

                                                                                                                                                                                                                                                                                                                                                      

 constitutional law that we review de novo."7                                                                                                                                            Whether a party has suffered prejudice is  

                                                                                                                                                                                                                                                                                                                                                        



                           6                           The other eight appeals are not before us.                                                                                                                            It appears that the superior court                                                                            



 dismissed one of those appeals and remanded the other seven for further action.                                                                                                                                                                                                                      



                           7  

                                                                                                                                                                                                                                                                                                                              

                                                      James v. State, Dep't of Corr. , 260 P.3d 1046, 1050 (Alaska 2011) (quoting  

                                                                                                                                                                                                                                                           

Brandon v. State, Dep't of Corr. , 73 P.3d 1230, 1233 (Alaska 2003)).  



                                                                                                                                                                           -4-                                                                                                                                                              7232
  


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                                                                       8  

 likewise reviewed de novo.                                                And "[i]n an appeal from a judgment of a superior court                                                                               



                                                                                                                                                                                                                             9  

 acting as an intermediate court of appeal," we review the agency decision de novo.                                                                                                                                              



 "The interpretation of a statute [or regulation] is a question of law to which we apply our  

                                                                                                                                                                                                                       



 independent  judgment,  interpreting  the  statute  [or  regulation]  according  to  reason,  

                                                                                                                                                                                                           



practicality, andcommonsense, consideringthemeaning ofthestatute's[orregulation's]  

                                                                                                                                                                                               

 language, its legislative history, and its purpose."10  "We review de novo whether a party  

                                                                                                                                                                                                                

 has waived a claim on appeal."11  

                                                                                       



 IV.	             DISCUSSION  



                  A.	              An   Audio   Recording   Of   A   Disciplinary   Hearing   Satisfies  Wolff's  

                                   Requirement For A Written Statement.                                           



                                   In  Wolff v. McDonnell                                   , an action brought by inmates against a state prison                                                              



 alleging that the prison's disciplinary proceedings did not comply with the Due Process                                                                                                                    



 Clause of the Fourteenth Amendment to the United States Constitution, the United States                                                                                                                        



 Supreme Court held that procedural due process requires "a 'written statement by the                                                                                                                                  



                  8                Kodiak Island Borough v. Roe                                                  , 63 P.3d 1009, 1015 (Alaska 2003) (citing                                                   



 Stinson v. Holder                           , 996 P.2d 1238, 1244 (Alaska 2000)).                                           



                  9  

                                                                                                                                                                                                                 

                                  Allen v. State, Dep't of Soc. Servs., Div. of Pub. Assistance , 203 P.3d 1155,  

                                     

 1160 (Alaska 2009).  



                  10  

                                                                                                                                                                                                          

                                  Johnson v. State, Dep't of Corr. , 380 P.3d 653, 655 (Alaska 2016) (quoting  

                                                                                                                                                                                                             

Barber v. State, Dep't of Corr. , 314 P.3d 58, 62 (Alaska 2013)); see also Catholic Bishop  

                                                                                                                                                                                                                     

 of N. Alaska v. Does 1-6, 141 P.3d 719, 722 (Alaska 2006) ("We review questions of law,  

                                                                                                                                                                                               

 including the  interpretation  of statutes  and  regulations, according  to  our independent  

judgment.").  



                  11  

                                                                                                                                                                                                                      

                                   Sellers v. Kurdilla, 377 P.3d 1, 13 (Alaska 2016) (citing State v. Jacob, 214  

                                                           

 P.3d 353, 361 (Alaska 2009)).  



                                                                                                            -5-	                                                                                                  7232
  


----------------------- Page 6-----------------------

                                                                                                                                                                                                              12  

factfinders as to the evidence relied on and reasons' for the disciplinary action."                                                                                                                                The  



Court identified three bases for its written statement requirement: (1) "[w]ritten records                                                                                                                  



of proceedings will . . . protect the inmate against collateral consequences based on a                                                                                                                                     



misunderstanding of the nature of the original proceeding"; (2) "the provision for a                                                                                                                                       



written record helps to [e]nsure that administrators, faced with possible scrutiny by state                                                                                                                        



officials and the public, and perhaps even the courts, where fundamental constitutional                                                                                                     



rights may have been abridged, will act fairly"; and (3) "[w]ithout written records, the                                                                                                                               



inmate will be at a severe disadvantage in propounding his own cause to or defending                                                                                                                                             

                                                          13       In  McGinnis  v.  Stevens,  we  identified  three  bases  for  the  

himself   from   others."                                                                                                                                                                                             



verbatim record requirement under the Alaska Constitution: (1) "a verbatim record will  

                                                                                                                                                                                                                     



help [e]nsure that administrators faced with possible scrutiny by state officials and the  

                                                                                                                                                                                                                       



public, and even the courts when it is asserted that fundamental constitutional rights may  

                                                                                                                                                                                                                    



have been abridged, will act fairly"; (2) "[a] verbatim record of the proceedings will  

                                                                                                                                                                                                                    



furnish a more complete and accurate source of information than the 'written statement'  

                                                                                                                                                                                                     



requirement of  Wolff"; and (3) a verbatim record "will assist in facilitating a more  

                                                                                                                                                                                                                 

intelligent review of the disciplinary proceeding."14  

                                                                                                



                                  Pease-Madore argues that the requirement of a verbatim record of the  

                                                                                                                                                                                                                      



proceedings  under  McGinnis  does  not  satisfy  Wolff  but  rather  is  an  additional  

                                                                                                                                                                                                  

requirement under the Alaska Constitution15  and that "the written statement and the  

                                                                                                                                                                                                                      



                 12               418  U.S.  539,  542-43,  564  (1974)  (quoting  Morrissey  v.  Brewer ,  408  U.S.  



471,  489  (1972)).  



                 13               Id.  at  565.  



                 14                543  P.2d   1221,   1236  (Alaska   1975).  



                 15               Although  Pease-Madore  did  not  preserve  this  issue  by  arguing  it  before  the  



superintendent,   his   briefing   to   the   superior   court   included   the   argument   that   "[t]he  

                                                                                                                                                                                             (continued...)  



                                                                                                            -6-                                                                                                   7232
  


----------------------- Page 7-----------------------

verbatim record serve separate purposes and actually preserve separate phases of the                                                                                                                     



disciplinary proceedings."                                         Specifically, he argues that the Supreme Court's concern                                                                  



about protecting the inmate against consequences from misunderstanding the original                                                                                                          



proceeding   is   not   mentioned   in   McGinnis ;   he   also   argues   that  because   McGinnis  



explained that the verbatim recording furnished a more accurate source of information                                                                                               



and   facilitated   a   more   intelligent   review   of   the   proceedings,   the   verbatim   record  



requirement must have been in addition to rather than in place of the written statement                                                                                                  



requirement.   He asserts that the                                           Wolff  written statement requirement memorializes "the                                                                    



evidence relied upon and the reasons for the decision" whereas the                                                                                               McGinnis  verbatim  



record requirement memorializes the proceeding itself, except for the part where the                                                                                                                    

evidence and reasons for the decision are discussed.                                                                         16  



                                Pease-Madore's argument that the McGinnis verbatim record requirement  

                                                                                                                                                                                    



is an additional requirement under the Alaska Constitution is not correct.  Our language  

                                                                                                                                                                                           



setting  forth  the  verbatim  record  requirement  in  McGinnis   clearly  reflects  our  

                                                                                                                                                                                                      



understanding that the verbatimrecord requirement is a more protective requirement that  

                                                                                                                                                                                                        



can satisfy the written statement requirement:  

                                                                               



                                Concerning the nature of the record required of disciplinary  

                                                                                                                                                    

                                hearings,  Wolff held merely that "there must be a 'written  

                                                                                                                                                             

                                statement by the factfinders as to the evidence relied on and  

                                                                                                                                                                        

                                reasons' for the disciplinary action."  In the case at bar, the  

                                                                                                                                                                         

                                superior  court decreed  that a tape recording  of the entire  

                                                                                                                                                                  

                                disciplinary  proceeding  is  essential.                                                             Here  we  are  in  

                                                                                                                                                                         



                15(...continued)  



verbatim  [recording]  requirement  was  .  .  .  an  added  obligation"  and  that  it  "did  not  

                                                                                                                                                                                                        

obviate the need for a written statement."  And the superior court held "that 'a verbatim  

                                                                                                                                                                                           

record' satisfied  Wolff's requirement for written findings of fact."  

                                                                                                                                                



                16  

                                                                                                                                                                                                          

                                See  22  AAC  05.420(b)(5)(D),  (c)(3)  ("[T]he  tape  recorder  need  not  be  

                                                                                                                                                          

operating during the deliberations of the disciplinary tribunal . . . .").  



                                                                                                     -7-                                                                                            7232
  


----------------------- Page 8-----------------------

                                agreement    with    the    superior    court.      In  our    view,    the  

                                requirement   of   a   verbatim   record   will   help   [e]nsure   that  

                                administrators faced with possible scrutiny by state officials                                                             

                                and the public, and even the courts when it is asserted that                                                                         

                                fundamental constitutional rights may have been abridged,                                                              

                                will act fairly.                     A verbatim record of the proceedings will                                                      

                                furnish a more complete and accurate source of information                                                        

                                than the "written statement" requirement of                                                            Wolff, will assist        

                                in facilitating a more intelligent review of the disciplinary                                                    

                                proceeding,   and   moreover,   the   use   of   cassettes   and   other  

                                means ofrecording                            hearings maywell                           provelessburdensome      

                                than the written statement requirement.                                                      [17]  



This  explanation  shows  that  we  considered  the  verbatim record  to  serve  the  same  

                                                                                                                                                                                                



purposes as the written statement - we determined that the verbatim record provides a  

                                                                                                                                                                                                           



more protective standard, serving those purposes at least as well as a written statement  

                                                                                                                                                                                       

would.18  This interpretation is supported by our subsequent statement that "the use of  

                                                                                                                                                                                    



                17             McGinnis , 543 P.2d at 1236.                           



                18  

                                                                                                                                                                                                        

                               Id. ; cf. Moore v. Collins, No. 92-8383, 47 F.3d 425, 1995 WL 71177, at *3  

                                                                                                                                                                                             

n.6 (5th Cir. Jan. 26, 1995) (noting that the United States Constitution does not require  

                                                                                                                                                                                                

the  recording  of  disciplinary  proceedings  but  that  in  a  prior  decision  the  court  

                                                                                                                                                                                           

"nevertheless agreed the measure was necessary to remedy the . . . failure to provide  

                                                                                                                                                                       

adequate written records of major disciplinary hearings as required by  Wolff"); Inmates  

                                                                                                                                                                                     

of the Neb. Penal & Corr. Complex v. Greenholtz, 576 F.2d 1274, 1284 (8th Cir. 1978)  

                                                                                                                                                                                 

(finding that maintaining a record of parole hearings "in the form of tape recordings"  

                                                                                                                                                                                       

fulfills  the  written  record  requirement  under  Wolff and  "is  constitutionally  adequate  

                                                                                                                                                                                          

provided that the recordings are of sufficient quality to enable the record to be reduced  

                                                                                                                                                                                                

to writing"), rev'd on other grounds, Greenholtz v. Inmates of the Neb. Penal & Corr.  

                                                                                                                                                                                                    

Complex, 442 U.S. 1 (1979);  Watson v. Coughlin, No. 86 CIV. 9217 (CSH), 1988 WL  

                                                                                                                                                                                                      

73388, at *4 (S.D.N.Y. July 1, 1988) ("[T]here is no doubt that a statement detailing the  

                                                                                                                                                                                                    

evidence and reasons for plaintiff's discipline was made in this case . . . .  The fact that  

                                                                                                                                                                                                      

that  statement  was  made  on  a  tape  recording  and  only  later  transcribed  is  of  no  

                                                                                                                                                                                        

significance."); Finney v. Mabry , 455 F. Supp. 756, 777 (E.D. Ark. 1978) ("The functions  

                                                                                                                                                                                

of  a  written  record  are   also  fulfilled  by   the  tape  recording  of  the  disciplinary  



                                                                                                   -8-                                                                                           7232
  


----------------------- Page 9-----------------------

cassettes and other means of recording hearings may well prove less burdensome than                          



                                                           19  

the written statement requirement,"                                                                                                

                                                               further emphasizing the advantages of a verbatim  



                                                                                                                                   

record over a written statement. We would not have made this statement if the verbatim  



                                                                                                                 

record requirement were in addition to the  Wolff written statement requirement.  



                                                                                                                                              

                      It is true that in McGinnis we did not mention the first basis identified in  



                                                                                                                                  

 Wolff,  namely  that  a  written  record  would  protect  the  inmate  against  possible  



                                                                                                                                            

consequences from misunderstanding the nature of the original proceedings.  But this  



                                                                                                                                  

does not mean that this purpose is not served by a verbatim record - to the contrary,  



                                                                                                                                          

access to a verbatim record may do as much or more to protect the inmate from such  



misunderstandings.  



                                                                                                                                  

                      As to Pease-Madore's argument that a written statement and a verbatim  



                                                                                                                                      

record memorialize "separate phases of the proceedings," a verbatim record may furnish  



                                                                                                                                  

a more inclusive record of the proceedings.  A written statement is a more summary  



                                                                                                                                   

record, since it does not reflect the full proceeding but rather sets forth "the evidence  

                                                                                           20    A  verbatim  record  is  more  

                                                                                                                                        

                                                                              

relied  on  and  reasons[]  for  the  disciplinary  action." 



inclusive, consisting of a "recording of the entire disciplinary proceeding," except for the  

                                                                                                                                             

deliberations.21           If the evidence relied on and reasons for the disciplinary action are not  

                                                                                                                                            



identified in the recording, then there is indeed a qualitative difference between the  

                                                                                                                                            



information made available through a written statement as opposed to a recording.  But  

                                                                                                                                            



           18(...continued)  



hearing . . . .").  

                     



           19  

                                                              

                      McGinnis , 543 P.2d at 1236.  



           20          Wolff   v.   McDonnell,   418   U.S.   539,   564  (1974)   (quoting   Morrissey   v.  



Brewer , 408 U.S. 471, 489 (1972))                        .  



           21  

                                                                                                                    

                      McGinnis , 543 P.2d at 1236; 22 AAC 05.420(b)(5)(D), (c)(3).  



                                                                      -9-                                                                7232
  


----------------------- Page 10-----------------------

if the recording includes information about the evidence relied on and the reasons for the                                                                                                                                                                                                               



decision, then the verbatim record fulfills this purpose and provides "a more complete   

and accurate source of information than the 'written statement' requirement."                                                                                                                                                                                                       22  



                                                                                                                                                                                                                                                                                                  

                        B.	                     The Superior Court Did Not Err In Holding That Due Process Was  

                                                                                                                                                                                                                         

                                                Satisfied By The Written Report And Audio Recording.  



                                                                                                                                                                                                                                                                                                            

                                                Pease-Madore argues that "[t]he superior court erred when it attempted to  



                                                                                                                                                                                                                                                                                        

rely upon the incident report and the verbatim record to 'collectively meet due process  



                                                                                                                                                                                                                                                                                       

concerns.' " He reads 22 AAC 05.455(a) as prohibiting the consideration of the incident  



                                                                                                                                                                                                                                                                                                             

report as evidence in proceedings where the officer who wrote the report was present at  



                                                                                         23  

                                                                                                                                                                                                                                                                                                           

the disciplinary hearing.                                                                            He argues that it was improper for the superior court to  



                                                                                                                                                                                                                                                                                                      

consider the incident report to be incorporated "into the record by mere reference," that  



                                                                                                                                                                                                                                                                                                       

the written decisions were insufficient, and that it was inappropriate "to utilize the  



                                                                                                                                                                                                                                                                                                          

verbatim  record  to  bolster  the  otherwise  complete  omission  of  a  statement  as  to  



                                                                                                                                                                                                                                  

admissible evidence relied upon or reasons for the adjudicative decision."  



                        22                     McGinnis , 543 P.2d at 1236;                                                                         see Wolff                        , 418 U.S. at 564 ("We also hold that                                                                            



there must be a 'written statement by the factfinders as to the evidence relied on and                                                                                                                                                                                                                

reasons' for the disciplinary action."                                                                                             (quoting  Morrissey , 408 U.S. at 489)).                                                                            



                        23  

                                                              

                                               See 22 AAC 05.455(a)                                                             ("A prisoner is presumed innocent of an infraction,                                                                                            

and the facility has the burden of establishing guilt.                                                                                                                                  A prisoner cannot be found guilty                                                                     

of an alleged infraction unless the hearing                                                                                                                    officer  or a majority of the disciplinary                                                               

committee, as applicable, is convinced from the evidence presented at the hearing that                                                                                                                                                                      

the prisoner's guilt is established by a preponderance of the evidence.                                                                                                                                                                                   The decision in                                   

the adjudicative phase of the hearing must be based only on evidence presented at the                                                                                                                                                                                                                   

hearing.  If a prisoner does not request the presence of the facility staff member who                                                                                                                                                                                                             

wrote   the   disciplinary   report,   the   report   may   be   considered   as   evidence   by   the  

disciplinary tribunal and alone may serve as the basis for a decision.                                                                                                                                                                                       Other hearsay  

evidence may be considered if it appears to be reliable.                                                                                                                                             The decision in the dispositive                                         

phase of the hearing may be based on evidence presented at the hearing or contained in                                                                                                                                                                                                                      

the prisoner's case record."                                                                      ).  



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                                                       In the words of the superior court, Pease-Madore has shown "[n]o good                                                                                                                                                                                                                    



reason . . . as to why the hearing officer could not use [the incident report] as                                                                                                                                                                                                                                        part  of the   



basis for his decision."                                                                        Under 22 AAC 05.455(a), "[i]f a prisoner does not request the                                                                                                                                                                                           



presence of the facility staff member who wrote the disciplinary report, the report may                                                                                                                                                                                                                                                            



be considered as evidence by the disciplinary tribunal and alone may serve as the basis                                                                                                                                                                                                                                                          



for a decision." Nothing in the regulation suggests that the report may                                                                                                                                                                                                                      not  be considered   



as evidence and serve as part of the basis for a decision if the facility staff member who                                                                                                                                                                                                                                                         



wrote the report is present.                                                                                      To the contrary, 22 AAC 05.455(a) provides that "[o]ther                                                                                                                                                          



hearsay evidence may be considered if it appears to be reliable," meaning that both the                                                                                                                                                                                                                                                                 



report and other hearsay evidence may be considered.                                                                                                                           



                                                       Pease-Madore's argument seems to be based on language from                                                                                                                                                                                                               James  v.  



                                                                                                                                         , where we stated that "22 AAC 05.455(a) directs that                                                                                                                                                        

State, Department of Corrections 



an incident report may be considered as evidence and serve as the sole basis for a                                                                                                                                                                                                                                                                             



disciplinary determination only '[i]f a prisoner does not request the presence of the                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                    24           However, this statement  

facility staff member who wrote the disciplinary report.' "                                                                                                                                                                                                                                                                  



from James means that the incident report may serve both as evidence and as the sole  

                                                                                                                                                                                                                                                                                                                                                    



basis for the determination only if the report writer's presence was not requested, not that  

                                                                                                                                                                                                                                                                                                                                                      



the incident report may not be evidence if the writer is present.   And any possible  

                                                                                                                                                                                                                                                                                                                                  



ambiguity is clarified by reference to the regulation itself as a whole, which in no way  

                                                                                                                                                                                                                                               



 suggests that the presence of the report writer at the hearing prevents the consideration  

                                                                                                                                                                                                                                                                                                             



of the report as evidence.  

                                                                



                                                       All three disciplinary decisions include the phrase "WOR as written,"  

                                                                                                                                                                                                                                                                                                                               



which appears to denote the incorporation of and agreement with the incident reports.  

                                                                                                                                                                                                                                                                                                                                                                          



                            24                         260 P.3d 1046, 1053 (Alaska 2011) (alteration in original) (quoting 22 AAC                                                                                                                                                                                                               



05.455(a)).  



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----------------------- Page 12-----------------------

Pease-Madore cites                            Brandon v.                  Department of Corrections                                       for the proposition that                     



"[w]hile the disciplinary committee may rely on the reports, it is still the task of the                                                                                                 



committee to be the finder of fact and determine which facts found in the reports support                                                                                       

                                                          25    But it is unclear whether the disciplinary decision at issue  

violations of regulations."                                                                                                                                                           



in  Brandon  contained  any  statement  incorporating  and  agreeing  with  the  incident  

                                                                                                                                                                              

report.26  



                              In light of the detailed incident reports and the verbatimrecords of the three  

                                                                                                                                                                                      



proceedings in these appeals, we conclude that constitutional due process has been  

                                                                                                                                                                                     



satisfied.               The  disciplinary  decision  regarding  the  first  incident  notes  that  "officer  

                                                                                                                                                                              



testimony perceived statement as a threat," which shows that the disciplinary committee  

                                                                                                                                                                          



found that the statement had been made and was perceived as a threat; Pease-Madore did  

                                                                                                                                                                                          



not contest having made the statement, instead arguing that it was not meant as a threat.  

                                                                                                                                                                                                   



The critical fact to be determined thus was whether Pease-Madore intended his statement  

                                                                                                                                                                            



to be a threat; the written decision found that it was a threat, reflecting the basis of the  

                                                                                                                                                                                          



decision.  



                              Similarly, thedisciplinary decision regardingthesecondincident notes that  

                                                                                                                                                                                         



the "[inmate] did not deny allegations but argued it to be an appropriate [sic] write-up  

                                



instead."  Thus, in addition to incorporating and agreeing with the incident report, the  

                                                                                                                                                                                          



disciplinary  decision  also  found  that  the  facts  alleged  in  the  incident  report  were  

                                                                                                                                                                                     



uncontroverted.  The disciplinary decision regarding the third incident notes that the  

                                                                                                                                                                                          



"[inmate] stated that sometimes death is funny," and the summary of Pease-Madore's  

                                                                                                                                                             



               25             865 P.2d 87, 91 (Alaska 1993)                                       .  



               26             See id       . at 90-91 (indicating that the Department argued the report provided                                                             



"enough information to advise [the inmate] of the reason for his guilt and allow [him] to                                                                                                   

file   a   meaningful   appeal"   but   not   stating   whether   the   report   had   been   expressly  

incorporated into the disciplinary decision).                              



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 statement shows that Pease-Madore did not deny the allegations but rather claimed that                                                                                                                                                                                                                                                            



his statement was not intended to be threatening. The basis of these decisions is evident:                                                                                                                                                                                                                                       



Pease-Madore's   explanations   for   his   statements   were   not   believed,   and   instead   his  



 statements were found to be threatening.                                                                            



                                                       Although the written disciplinary hearing reports are extremely brief and                                                                                                                                                 



undetailed,  they do expressly incorporate the incident reports, which provide more                                                                                                                                                                                                                                                         



details. We conclude that the verbatim records, when considered along with the incident                                                                                                                                                                                                                                           



reports   and   other   evidence   from   the   proceedings,   satisfy   the   written   statement  



requirement   in   Wolff,   and,   as   the   superior   court   observed,   "Pease-Madore   had   the  



opportunity to review the recordings to prepare for his appeals." We therefore hold that                                                                                                                                                                                                                                                           



due process was satisfied.                                           



                                                       Even if there were procedural error, Pease-Madore has made no showing                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                                                                             27  

of prejudice, and therefore the "disciplinary decision[s] may not be reversed."                                                                                                                                                                                                                                                      Pease- 



Madore   argues   that   the   statutory   prejudice   requirement   is   preempted   under   the  



 Supremacy Clause of the United States Constitution because the United States Supreme                                                                                                                                                                                                                                         



Court held in                                         Wolff  that a written statement is required. However, we have held that "an                                                                                                                                                                                                                   



inmate   must   demonstrate   both   that   a   constitutional   right   was   violated   and  that  the  



violation prejudiced the inmate's right to a fair adjudication," in order for a disciplinary                                                                                                                                                                                                                  



                                                                                                 28  

decision to be reversed.                                                                                 



                                                       Though we uphold the superior court's affirmance of the decisions of the  

                                                                                                                                                                                                                                                                                                                                                     



Department of Corrections, we do not approve of or validate the Department's failure to  

                                                                                                                                                                                                                                                                                                                                                          



                           27                            AS 33.30.295(b) provides, "A disciplinary decision may not be reversed                                                                                                                                                                                                 



(1)   unless   the   court   finds   that   the   prisoner's   fundamental   constitutional   rights   were  

violated in the course of the disciplinary process, and that the violation prejudiced the                                                                                                                                                                                                                                                            

prisoner's right to a fair adjudication."                                                          



                           28  

                                                                                                                                                                                                         

                                                      James , 260 P.3d at 1056 (citing AS 33.30.295(b)(1)).  



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----------------------- Page 14-----------------------

comply with its own regulations. 22                                                    AAC05.475(a)                          plainly requires that the disciplinary  



tribunal's   "decision   must   include   .   .   .   a   summary  of   the   statement   of   the   accused  



prisoner" and "a summary of the testimony of witnesses."                                                                                      The regulation also requires                      



the   decision   to   include   "a   statement   of   the   disciplinary   tribunal's   adjudicative   and  



dispositive decisions and the reasons for those decisions, including a statement of the                                                                                                                     



evidence relied upon and the specific facts found to support the disciplinary tribunal's   

                         29   The Department did not comply with its own regulatory requirements.  We  

decision."                                                                                                                                                                                                 



expect the Department going forward to actually comply with its own requirements for  

                                                                                                                                                                                                            



its written decisions under 22 AAC 05.475(a).  

                                                                                        



V.               CONCLUSION  



                                 We AFFIRM the superior court's dismissals of the three appeals.  

                                                                                                                                                                            



                29               22 AAC 05.475(a).     



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