*1 payment of the investigation, his with the whether “substantial need not decide We necessary to defend co- legal fees client’s enough to resist even compliance” would be her, against and the ab- lawsuit counsel’s neither the admonition because informal any prior disciplinary record. compli- sence substantial Board nor we have found arguably em- ance here: The document sanction, minimal that some It concluded requirements of the rule was bodying the admonition, imposed. We namely should be Accordingly, we to the client. never sent L.R., 640 court said in In re agree. As this did not err its conclude that the Board (D.C.1994): re- “[W]hether A.2d 1.5(e)(2). The Board’s interpretation of Rule somewhat was reckless or spondent’s conduct comports plain words interpretation with upon the statu- blameworthy, it trenched less of the rule. justifies the issu- tory in manner that ban According- admonition.” ance of an informal argu respondent’s turn next We “[directing] order ly, the Board’s we affirm punishment should have been ment that no an informal admoni- Bar issue Counsel him, including ad imposed on the informal tion, [directing] that further and.... accept the rec monition. We are bound many miti- reiterate informal admonition disposition of the Board “unless ommended in the Board’s or- gating discussed factors” tendency foster a toward to do so would der.5 comparable con dispositions for inconsistent So ordered. otherwise be unwarranted.” duct or would XI, 9(g)(1). This case is the R. D.C.Bar 1.5(e)(2). Hence,
first to arise under Rule compare is no other ease with which
there imposed respondent. punishment on
However, sanctions the Board did examine 1.5(b) regard
imposed respect to Rule charged fee to be
ing basis or rate of the so, doing the Board client. After WALTON, Appellant, that: concluded James date of the Rules the effective Since numerous Bar has issued Counsel Appellee. COLUMBIA, OF DISTRICT attorneys who admonitions to informal supply newly engaged clients the failed to No. 93-CV-1275. or rate of disclosure of basis written Appeals. Court District of Columbia 1.5(b). required Rule the fee Nonetheless, pun- respondent maintains that Argued Oct. because: “Identical
ishment is unwarranted 1, 1996. Decided Feb. analogous violations reveals sanctions existence, or char- nothing absence about aggravating circum- mitigating or
acter of that the Board did But it is clear
stances.” respon- mitigating factors
examine the case, cooperation including his full
dent’s distinguish comрliance. We helpful substantial because the court Ziemann is not In re Phillips ground. on this arrangement did at issue that the fee there found at 1235. 616 N.E.2d disci- 186 Ill.Dec. of fees under the not constitute division parties the same plinary since both shared rule Holstein, agree "for cases sub- distinguished with the Board that 5. We legal the court office. In decided before to the Board but not making Phillips mitted Phillips, clear that turned it 2, 1995], January [on went into effect new rules written communication the existence of a confiden- should remain admonition attorneys the informal tial,” were identified. clients in which both counsel, where, here, it is bar at least clearly stated: The cotut proceedings respondent, extends who Ab- not the occurred here. written consent No such consent, past date. no there can be such written sent *3 contraband, prohibiting possession ulatíons privileges. and abuse of filed an Columbia, against action the District Department Department and officials of the Hauhart, Washington, appel- Robert C. for (1979), under 42 and under U.S.C. lant. (a)(3)(C) ll-921(a)(2) §§ D.C.Code Wilson, Mary Corporаtion L. Assistant (1981) asserting Depart- violations of the Counsel, Pinkston, Jr., with whom Garland regulations,1 Regulations ment’s the Lorton Acting Corporation Counsel the time the [“LRAA”], Approval Act of 1982 28 DCMR filed, Reischel, Dep- brief was and Charles L. Chapter 5 The trial court remanded Counsel, brief, uty Corporation were on the the matter to the for a written appellee. *4 findings. considering statement of After the remand, response Department to its the FERREN, SCHWELB, Before and “complaint the trial court ruled Walton’s REID, Judges. Associate depriva- fails to state a claim of constitutional Opinion by Judge for the court Associate process rights,” tion of due and concluded REID. complied the “defendants have now with the pertinent provisions of the Ac- [LRAA].” Concurring opinion by Judge Associate cordingly, granted Depart- trial court p. FERREN at 1356. Summary Judgment. ment’s Motion for We Concurring opinion by Judge Associate ruling. see no trial court’s error p. at SCHWELB 1358.
REID, Judge: Associate FACTUAL SUMMARY regarding disciplin- This case raises issues 19, 1992, Williams, January a On Officer ary punishment of a Lorton Correctional Fa- at Lorton correctional officer Correction- cility procedural rights gov- inmate and the Complex, coming a al detected a smell from erning disciplinary process. Appellant occupied by cell inmate Officer Walton. challenges James Walton a trial court deci- officer-in-eharge, Williams notified the Ser- affirming disciplinary ruling sion of the geant inspected Bonaparte, who turn Wal- Department Depart- of Corrections. The gallons liquid subjected ton’s cell and found of a sub- days ment fourteen adjustment segregation reg- plastic bag. for violations of stance in a The substance later (b) rights “Except provided § 1. 42 U.S.C. 1983 is a [refer- civil statute which in subsection jurisdiction ring jurisdiction to Federal and prohibits person acting any “under color during period the transition over civil actions statute, ordinance, custom, regulation, usage, or system], Superior to the new court then Territory State or or District of Colum- jurisdiction Court has civil action or depriving any rights, privi- bia” from another "of (at equity) brought in the other matter law or leges, or immunities secured the Constitution District of Columbia....” Monetary damages injunc- and laws_" 11-921(a)(6) provides Section that: may § tive relief be awarded under Wal- Immediately following expiration of the ll-921(a)(3)(C), per- § ton’s citation to D.C.Code period beginning thirty-month ef- [the on ... taining jurisdiction Family of the Division fective date of the District of Columbia Court Reorganization Court, 1970], Superior probably of the was an inadver- the court has Act of Moreover, jurisdiction (regardless of the amount in con- tent error. he contends that his ac- matter, troversy) any civil action or other at brought required to be tion was neither nor equity, brought law or in in the District ll-921(a)(3)(A)(iii) brought § under D.C.Code Columbia. statute, corpus which refers habeas prisoner We do not need to decide whether a may rely § He cites D.C.Code D.C.Code 16-1901 ll-921(a) ll-921(a)(6) §§ or ll-921(a)(2). However, 921(a)(2) § § has 11— We conditions of his confinement. expired now and cannot serve as a basis for the bring properly could conclude later that Walton jurisdiction trial court’s over Walton. He did not corpus Superior Court as a habeas his case in proceeding ll-921(a) ll-921(a)(6) §§ cite D.C.Code or ll-921(a)(3)(A)(iii) § which under Superior statute, generally provide for the Court's corpus D.C.Code refers to the habeas § 11-921(a) general jurisdiction. Section states: 16-901. concerning charges juice pro- statement grapefruit was found to be juice him, fermenting. Tests on the re- “It against cess of as follows: was not seven of less than one vealed an alcohol content approx, gallons.” In gallons. It was two percent. addition, reflects the fact the memorandum “desire” to have that Walton asserted his Disciplinary Department’s A. The Action hearing, representation at the his “desire” and Procedures hearing Sergeant Bonaparte at the but have Disciplinary issued a Re- Disciplinary Report, his not the writer of the port day as the inci- to Walton on the same present, to have witnesses “desire” signed by Disciplinary Report, dent. The heard “wish” to be Williams, charges Officer contained three Hearing sig- of a Officer.6 Walton’s instead (1) major against possession of con- Walton: January appears nature bottom (a offense) traband Class I in violatiоn of 28 20,1992, memorandum. 502.11;2 possession DCMR of contra- (a offense) II in violation of 28 band Class hearing charges against A on the 503.10;3 privi- DCMR abuse January place on before took (a offense) leges Class III violation of (“the Board”); the Adjustment Board Chair 504.4.4 28 DCMR Under Till- Corporal Ernestine of the Board was *5 penalties one of the is authorized for hearing man.7 testified at the and I, II, “Assignment III Class and offenses is: Sergeant Bonaparte, two witnesses: called period adjustment segregation ... for a the odor was inspected who his cell after (28 days” ... not to exceed fourteen DCMR Williams, by Dr. reported Officer and John 505.2) § I II in the case of Class and offenses testi- Seipel, a medical officer at Lorton who III days in the case of a Class or seven juice fruit regarding the fermentation of fied (28 505.3(a)).5 January § offense DCMR On from the possibility of intoxication and the Department a sent Walton Depart- liquid in cell. The found Walton’s charges regarding the con-
memorandum Disciplinary Report, introduced the but ment Disciplinary Report. in The mem- tained (the author of did not call Officer Williаms Disciplinary Re- orandum summarized the addition, testify. the De- Report) to port approximate and advised Walton documentary evidence partment presented hearing charges of his on the contained date alcohol content of the revealed that the Disciplinary Report. in the It also included which adjustment segrega- § provides, pertinent part: § 5. 28 DCMR 505.4 defines 2. 28 DCMR 502.11 major possession of con- control cell without "[t]he Class I offense tion as: “confinement in a of (b) correspondence, ... Pos- traband shall be defined as follows: privileges, uncensored but with of, making, attempting any matter, to make session or reading religious legal and and access to intoxicating beverage....” (2) per hours week of out-of-cell at least two Provided, recreation; may re- that recreation be specifies pertinent part: § 3. 28 DCMR 503.10 extraordinary safety security and due to stricted possession contraband "The Class II offense of of risk.” (a) any following: of shall include the Possession institution, by the article that'has not been issued 509.1, §§ and an in- cаnteen, 6. Under 28 DCMR 508.2 specifically purchased or au- from the disciplinary Administrator; may action (b) to have his any mate choose by Use of thorized officer, single hearing or a three contrary or heard a manner to the intent article in issuance, provisions purchase, person Adjustment or authoriza- of Board. ..." tion. pursuant Adjustment convened The Board was 7. provides: III “[t]he Class 28 DCMR 504.4 specifies Section 509.2 that: to 28 DCMR 509. privileges shall include the offense of abuse of (3) Adjustment three Board shall consist of "The (a) willfully violating provisions of following: im- Corrections officials who are of dealing privi- any regulation with a institutional any way in partial have not been involved in and subsection, 'privi- lege. purposes For of this proceedings and the offense which caused any lege' conferred shall be defined as benefit investigation participated in the who have not regula- populace by upon institutional the inmate allegations." Corporal was sued in this Tillman tions; (b) serving taking or excess food from action, complaint against the was filed but no dining abusing dining рrivi- line in the hall or of the Board. other two members leges.” (2) possession of contraband.10 juice in less than band and grapefruit Walton’s cell was the definition percent. contended that under one tenth of one “intoxicating beverage” he could not have during only disagreement factual major guilty “possession of been found gal- hearing appeared to the number of be contraband”, testimony given of Dr. John liquid lons of found in Walton’s cell. The Moreover, he he maintained that Seipel. Report amount as Disciplinary calculated the contra- guilty “possession could be gallons.” “about seven Walton insisted given the he had been band” because gallons Dur- two were found his cell. Seipel Dr. juice by Department personnel, Bonaparte’s ing testimony, Sergeant his oral juice begins to ferment immedi- testified that ranged eight or to four- estimate from seven (3) the ately temperature, room De- thirty-four gallons.8 teen or fifteen partment failed to introduce evidence testimony all and evidence had been After juice altered distillation. had been received, Board deliberated. appeal on Stempson Mr. denied Walton’s “finding It stated its and recommendation” February no issue 1992.11 Walton raised “ ‘Guilty’ writing follows: based on docu- appeal Stempson, regarding the in his to Mr. days mentation. Recommend fourteen [Ad- decision or issuance of the Board’s written justment] segregation. to former Return receipt of that the timeliness of Walton’s [Adjustment] seg- completion status after decision.12 regation. appeal. Resident does wish to Re- turn ... Al- to former status after time.” Complaint Trial and the C. Walton’s though the Board recommended fourteen Proceedings Court’s days adjustment segregation, it did not July Superior suit in Court on Walton filed part all recommend “forfeiture of or 1992 under U.S.C. good earned time” under 28 [Walton’s] ll-921(a)(2) (a)(3)(C), see, §§ D.C.Code 505.2(a).9 informed The Board *6 supra, naming as Defendants the note orally, of him a its decision and sent Columbia, Department, and District of copy of the written statement. Ridley, Department, Walter Director of the Douglas Stempson and Ernestine Tillman Appeal to the B.Walton’s capacities. complaint His la- their official (1) 31, 1992, legal January categories: claims in two On Walton sent a letter beled his (2) Douglas Stempson, claims and constitutional violations and the Administrator Lorton, statutory respect to the Facility appealing Maximum violations. With Fourteenth findings respect category, first he invoked the the Board’s (1) major charges possession of: contra- Amendment13 to the United States Constitu- estimating provides § [Ad- problem 12. 28 DCMR 512.7 that: "The 8. Part of the the number writing gallons may justment] be traceable to the fact that shall issue a decision in found Board liquid plastic bag. stating findings involve- was in a its as to the resident's ment, upon which the the factual information 505.2(a), § 9. Under 28 DCMR an inmate found and, based, finding been if the resident has is offense) guilty (major could of a Class II violation guilty, penalty imposed to be and no- found part punished be with the "forfeiture of all or right appeal under tice of the resident’s good earned time.” provides § § 512.10 that: "The 513.” 28 DCMR copy deci- a of the written resident shall receive privileges 10. Walton never contested the abuse of (3) working days the hear- within three sion charge. ing.” denying appeal, Stempson Mr. wrote the Fourteenth Amendment 13. Walton invoked possession "Resident Walton was in of seven applica Amendment which is instead of the Fifth gallons juice with an alcoholic content of of fruit However, courts of Columbia. ble to District percent. approximately contention one Your process equal protection approach the due 'shoots’ were discover- [sic] seems be Amendments of the Fifth and Fourteenth clauses ed too soon. If we had waited the fermentation respect to certain is in a similar manner with the alcoholic content and would have increased Mayhew, v. 601 sues. See District Columbia when thus enable him to become intoxicated (D.C. 1991); totally unaccepta- Adarand Constructors your argument A.2d 43 drunk. I find — U.S. -, -, Pena, deny appeal.” v. this Inc. ble 1352 LRAA, §
tion and asserted two basic constitutional 28 DCMR 512.7.” As reasons for remand, challenges disciplinary to the Board’s action: the trial court included the fol- (1) Adjustment gave lowing no “[T]he written clause: satisfy require- statement the minimum appearing to the Ad- [I]t Court (2) process”; ments of constitutional due justment Board has not issued a written was an insufficient written “[T]here state- findings setting statement of forth the rea- upon ment as to the relied and the evidence disciplinary required sons for its action as disciplinary reasons for action Administra- § 112.6 DCMR of the Lor- [28 512.7] 4, 1992, Stempson’s February tor letter de- Regulations Approval Act of ton 1982 Hence, nying appeal.” his constitutional rested, indicated, complaint as his statement, The Board issued a revised which McDonnell, aspect on that Wolff 2,1993. July filed on the District of Columbia 2963, 2978, U.S. S.Ct. L.Ed.2d Subsequently, granted the trial court sum- (1974), requires a “written state- mary judgment in favor of the District of ment the fact as finders to the evidence 13,1993, August trial court’s Columbia. The disciplinary relied on and reasons for the part “[accepting all order concluded that: action.” true, plaintiffs allegations factual regard category With to the second of his complaint fails to state a claim of constitu- claims, complaint a Walton’s asserted viola- deprivation proсess rights tional and it of due pertaining tion of five sections of the LRAA [appears] court that further defen- (1) person sign to: who should the disci- complied pertinent dants have now with the (28 plinary report specifying DCMR 506.3 provisions ... Walton not- [LRAA].” accusing that: “the official who has investi- appeal. an ed gated alleged an offense shall fill out and (2) sign disciplinary report_”); the re- ANALYSIS (28 quirement report of a written appeal brief raises three issues requiring 512.7 that the decision state: “its (1) trial court erred for review: whether the involvement, findings as to the resident’s by remanding case to the upon finding factual information which the of the evi- Board for a written statement based, penalty im- and ... to be relied on fifteen months after the dence ...”); posed. the standard of review for disciplinary hearing; whether the Board’s (28 appeal requiring DCMR 513.2 *7 concluding trial court erred in that the com- upon a review based reasonable assessment plaint to state a claim of constitutional failed (4) presented); the insuffi- the evidence deprivation, factual accеpting plaintiffs all of ciency of evidence meet the definition of true; allegations as and whether the trial contraband, major as in 28 set forth DCMR by concluding court erred that defendants 502.11(b); insufficiency of the evi- complied pertinent provisions had of the possession to meet the definition of dence by submitting LRAA contraband as defined in 28 DCMR 503.10. 2, July Board’s written statement declaratory judgment sought a alleged of the He identifies the violations defendants violated his constitutional and complaint, LRAA as those in his dis- stated statutory rights. He also asked that summary. in the factual cussed above against disciplinary decision him be vacated any and that record of the matter be ex- I.
punged.
21,1993,
April
The trial court concluded that Wal
In an order docketed on
complaint
a claim of
trial court remanded the matter to the De-
ton’s
failed to state
deprivation
process
partment’s Adjustment Board for issuance of
constitutional
of due
findings pursuant
rights,
§ 112.6 of the
and that
had corn-
“written
2974-75,
2105-08,
539, 555-58,
2963,
(1995); Bolling
41
1353 a statute. constitution or federal only catе the plied with the LRAA Not does Walton Toledo, 635, 640, 100 conclusions, 446 S.Ct. but he also as v. U.S. challenge these Gomez erroneously granted L.Ed.2d 572 Nonethe trial court 64 serts that the compan Summary Judg less, forth in the Department’s Motion for for the reasons set Roach, law, questions A.2d 801 ment. These are all of Abdullah v. 668 ion case (D.C.1995), Superior de novo. John therefore our review is See we conclude that Columbia, Department’s A.2d may properly v. District 579 son-El review Court (D.C.1990). reviewing motion for allegedly a violate disciplinary which decisions rec summary judgment, “we must assess the government asserts that LRAA The independently.... [and it] ord view as a should be construed action Walton’s party opposing light most favorable to the is corpus proceeding because “habeas habeas Georgetown v. Uni the motion.” See Colbert prisoner remedy for a state the exclusive (en (D.C.1994) versity, 641 A.2d did not take challenging his detention.” We bane). States, Vaughn position in v. United (D.C.1991), to do so and decline A.2d 425 II. now.14 “legal alleged claims and Walton’s A. alleged Jurisdiction
constitutional violations” and his
“statutory
turn
violations” are related. We
pro
Although the LRAA does not
“statutory
first to his
violations” or his asser
disciplin
judicial
prison
review of
vide
regarding
Department’s alleged vio
tions
juris
ary decision under the “contested ease”
and the trial court’s
lations
the LRAA
1-1509, -1510,
§§
arewe
diction of D.C.Code
alleged
regarding
rulings
errors
its
on those
challenge
regulatory
satisfied that Walton’s
First, we
determine the
violations.
must
Superior
properly
could be raised
Court
Superior
jurisdiction
basis of the
Court’s
Following
corpus.
Ab
petition
for habeas
challenge regarding
over
Walton’s
(D.C.1995),
dullah,
A.2d 801
we
supra, 668
application of the LRAA.
refer
Board’s
We
“not
recognize
corpus reaches
that habeas
“regulatory
to this
as Walton’s
also the form of detention.”
the fact but
challenge.”
jurisdiction un
Walton asserts
We Lorton, argument juncture juice in grapefruit first at this of our deci- lons of his cell at ministration, (D.C.1993). findings, including ten statement of its the factu- 633 A.2d 20-21 findings Even if there where exhaustion is al on which the are are instances information based. required which the logical for a civil action over There is also a connection between the jurisdiction §11- trial court has trader D.C.Code sufficiency evidence and that, 921(a), given compre- we are satisfied requirement, set forth in 28 DCMR 513.2 LRAA, hensive administrative scheme under the appeal upon be decision ‘Rased rea- remedy Walton’s failure to exhaust his for an presented.” sonable assessment of the evidence alleged litiga- bars violation of 28 DCMR 506.3 appeal argues the administrative that issue in court. tion of could not have been based on a reasonable as- *9 presented sessment of the evidence because the support evidence was not sufficient to the deci- first 17. We do not decide whether the Board’s sion. inadequate, written statement was or whether particular respect to form is essential required by the written statement 28 DCMR 16.Arguably, may bring Walton have been able § 512.7. 11-921(a). supra § his D.C.Code case under See However, principle in he still would have n. 1. had to exhaust his administrative remedies. But 18. Walton also contests the truth of this state- ment, Group Ad- which we address below. see District Columbia v. Insurance us. question need not detain This that the sub- in a container.19 He denied suffi wine, deny whether Walton did not need not decide stance was homemade but We Although cell. remedies ciently that there was a smell his his administrative exhausted case, juice found to the alcoholic content of the was this or particular facts of light of the percent, circumstances, one 28 DCMR 502.11 be less than whether, he should under major “possession of contraband” defines Superior in the to raise issues permitted be of, making, attempting “possession or include argued agency, which were not Court beverage.” In any intoxicating addi- to make contentions if his substantive because even tion, “possession 503.10 defines us, they fail on the mer properly before are article contraband” to include “use argument simply has no third its. Walton’s contrary provi- in a manner to the intent or signa explanation for two merit. The issuance, purchase or authoriza- sions of statement is the second Walton tures on upon admission tion....” Based Walton’s signature has the absence of one clear and grapefruit gallons that there were two Walton, any prejudice to or not resulted his failure juice in a container in his cell and justice. The third mem any miscarriage of cell, deny the smell in his the Board Department Board had left the ber of the reasonably conclude that the trial court could was written statement the time second gallons of prisoner accumulates two who Moreover, statement is the second released. grapefruit juice in a in his cell and container remarkably from the documents different deny that there was a smell who fails to one, except with comprised the first cell, intoxicating attempted his to make an Furthermore, only rea respect form. respect charge beverаge. “abuse With more was issued son the second statement privileges” in of 28 DCMR violation hearing is days after Walton’s than three 504.4, conceded that he retained Walton sufficiency challenge to the of the juice permission. the fruit in his cell without guilty. him the facts to find On evidence Hence, ample was factual evidence there us, to con it be unreasonable before would LRAA, charged. Ac- violated the Walton disciplinary decision that the Board’s clude cordingly, neither the Board’s second written ground. Ac on such a should be reversed 13, statement, August nor the trial court’s reject regulato cordingly, Walton’s third we 1993, factually legally inade- order was or the trial court’s ry argument, and affirm quate. complied with its ruling regulations. Signatures of the C. Board and Issuance Second Statement regulatory turn next to Walton’s third
We
III.
argument
regarding the Board’s second
regulatory chal
Since Walton’s
statement,
July
con-
filed on
1993. He
fails,
his constitutional
lenge
turn next to
we
fatally
defective
tends that this statement
§ 1983. Unlike
42 U.S.C.
under
hearing
only two
board
because it contains
re
challenge,
is not
regulatory
Walton
three;
signatures,
instead
member
of adminis
exhaustion
quired to demonstrate
three work-
it was not issued within
because
§ 1983
respect to his
remedies with
trative
hearing.20
days
January
ing
of his
However,
to be
for his claim
challenge.21
question as to whether
There is a threshold
prove
must
cognizable under
applies
doctrine
the exhaustion of remedies
deprived him of
person has
that:
some
he
argument,
third
or whether
to Walton’s
person
right,
federally
protected
generated
properly raised two new issues
has
right acted
deprived him of a federal
who
by the Board’s second statement.
simply re-
requested
juice
one. The
was Walton
Department indicated that the
19. The
bag,
fragments
plastic
contained
found in a
written statement
its first
wrote and re-issued
fruit,
wrapped in his mattress
and was
whole
regulatory
guilty
violations.
finding
cover and blanket.
Regents,
U.S.
Patsy
v. Board
21.See
hearing
re-
after
was no administrative
20. There
mand,
73 L.Ed.2d
does not indicate
and the record
*10
under color of state or
ciently
territorial
law. Go-
exhausted his administrative remе-
Toledo,
640,
mez
supra,
v.
relied on and reasons for
disciplinary
exhaust on the two issues embraced
his
McDonnell,
539,
action.”
v.
418 U.S.
Wolff
argument:
third
Adjustment
whether the
2963, 2978-79,
94 S.Ct.
1357
Avenue,
Hampshire
New
apparently
trial
re- Tenants
Although
judge
the
“[tjhere
(after
Adjustment
remand,
N.W.,
matter to
Board
manded the
the
at 76
647 A.2d
original
did
the
statement
because
'written
ruling
Adminis
by the Rent
no adverse
was
512.7,
satisfy
alleged—
§
had
not
Walton
appeal
could
from which the tenants
tration
lawsuit, it is also
the first time —in his
for
Commission”).
to the
judge
trial
he could
clear that the
believed
out,
state-
written
it turned
the second
As
evidentiary
adequately review for
suffi-
not
required
only
three
contained
two of
a more
ment
ciency without
detailed statement
512.9,
findings
See
§
Board’s
and conclusions.
so Walton
signatures,
the
see DCMR
saying, in
judge
at 1352-53. The
was
ante
the court that the statement
complained to
effect,
could
for sufficien-
that he
not review
It was
procedural regulation.2
violated that
adequate
explanation
cy
an
without
written
issue
entirely proper for
to raise this
why
happened
Wal-
on of what had
and of
instance, since
court in
first
with the trial
the
charged disciplin-
conduct violated the
ton’s
proceeding did not create
the remand
himself
ary regulations. Although Walton
remedy of
opportunity for
administrative
Admin-
appeal
contended on
to the
had never
alleged
of 512.9. See
Board’s
violation
the
regula-
that
the written statement
istrator
signatures,
the
challenge
A
number of
id.
tion,
512.7,
violated,
judge
had
the
been
frivolous,
moreover,
necessarily
for
is not
effectively
no rea-
ruled —and this court sees
required
there is
signatures
all the
without
doubting
evidentiary sufficien-
son for
—that
represents
the
assurance that
statement
no
cy
case without
could not be resolved
this
members.3
considered views of all Board
the
statement,
had not been
a written
which
meeting
provided,
requirements
the
argue
Theoretically, I
could
suppose, one
§ 512.7.
challenge
the Board’s
failure
that Walton’s
reconvened, prepared a more
The Board
initially ap-
statement when he
first written
statement, and sent
detailed written
Administra-
pealed
ruling
the Board’s
directly
judge,
as re-
statement
the trial
all claims
means that Walton has waived
tor
quested.
go
the
Because
statement did
issuing the
irregularity in
of administrative
Administrator,
through
judge
Wal-
the
ruling
second one
written
Board’s
—even
remedy
ton had no
to exhaust
administrative
requested.
argu-
judge
But that
the trial
respect
practical pur-
to it.1
For all
trial court has
ment would fail. Once the
in the
poses, Walton received the statement
effect,
ruled,
prisoner’s
that the
evidentia-
July
delivery
transmitted the
same
sufficiency claim
resolved with-
ry
cannot be
judge. Upon receipt
the trial
statement to
statement,
comprehensive
more
written
out a
statement,
written
the court sua
the revised
must be
prisoner
entitled
sponte
of the remain-
resumed consideration
adequacy of
on
that statement
13,1993,
and,
ing pending
August
motions
otherwise,
regulations
ground
permit;
summary judg-
denied Walton’s motion for
might
again
supply a defective
Board
granted the
cross-mo-
ment and
defendant’s
by the
this
unreviewed
document —in
сase
summary judgment.
tion for
Because
effectively frustrates
Administrator —that
therefore,
case,
employed
procedures
in this
state-
that the
court’s need
assurance
effectively
only place that
could
substantively provides
procedurally
See
challenge the statement was in court.
ment
That
is frivolous
By ordering
the Board.
contention
that the
submit the revised
fore
court,
directly
com-
statement
to the trial
that Walton had never
written
of the fact
view
apparently
ruling
court’s order
also circumvented
been
had
plained that
the first Board
safeguard
procedural
by 28 DCMR
ensured
obviously
regulation
was
untimely
513.1,
(or
requires
the Administrator
period, during
case
which the
at the
not directed
designee)
all deci-
to "review
Administrator's
ruling.
appellate
the Board’s
review of
is on
Board or
rendered
sions
hearing officers.”
3.Indeed,
accompanied
signature
one
had
if
statement,
support a substan-
that fact would
complained
vio-
also
that the statement
2. Walton
did
argument
on its face
statement
tial
not been
because it hаd
lated 28 DCMR 512.10
majority.
days
hearing
the views of a Board
be-
not reflect
three
of Walton’s
issued within
*12
adequate
an
reviewing
record for
sufficiency
objected
have
persuad-
statement and
of the evidence.
change
ed the others to
it in
respect.
some
statement,
therefore,
The written
does not
difficulty
here could have been avoid-
appear
to be tainted
the lack of a third
if
judge
ed
the trial
had followed the usual
words,
signature.
In other
there is no basis
path, remanding the record —or the case—to
arguing
for
signa-
omission of the third
Administrator,
the
responsible
who would be
protest
ture reflected
against
some kind of
transmitting
for
request
the
to the Board.
the
substance
the written statement that
The Board would then have issued its written
required
the trial court was
to take into
Administrator,
statement
who would
account.
adequacy
have ruled on its
sending
before
along
statement
to the court. Presum-
say
All this
tois
that I believe this court
ably,
part
proce-
of that standard remand
correctly reaches the merits of Walton’s two
dure,
Walton,
prisоner,
would have had
arguments applying §§
technical
512.9 and
an opportunity
argue
to
to the Administrator
512.10, to the second written statement.
adequacy
about the
of the second written There was no
to
failure
exhaust administra-
statement;
i.e.,
prisoner
would have had
because,
above,
tive remedies
as elaborated
remedy
administrative
during
exhaust
remedy
no administrative
was available. But
remand, before the court
pro-
resumed the
regulations,
512.10,
§§
because the
512.9 and
ceeding.
approach
But that
was not taken
did not afford Walton
basis for relief on
By dealing directly
Board,
here.
with the
case,
agree
facts of this
I
affirming
with
judge
prison
trial
cut the
Administrator
the trial court’s decision.
out of
process
precluded
and
seeking
from
remedy
an administrative
be-
SCHWELB,
Judge, concurring
Associate
judge
fore
up
took
the merits of Walton’s
in the result:
remaining
light
claims in the
of the new
join my
I
colleagues
voting
in
to affirm the
written statement.
decision,
Department’s
agree
and I
that,
I
circumstances,
believe
in some
much
Judge
of what
Reid has written.
I
prisoner
whеn
brings
a
a 512.9 issue to the
however,
separately,
my
write
because
as-
court, the trial court will have to remand for
differs,
sessment of several of the issues
required
signatures, in order to be sure
emphasis,
substance or in
from the treatment
that the statement reflected the considered
in majority opinion.
those issues
findings and conclusions of the entire Board.
applicable regulations,
Under
see ante at
I.
6,
prisoner
right
note
a
has the
to select
single
between a
hearing officer and a three-
JURISDICTION
Adjustment Board,
member
and
thus
My colleagues’ jurisdictional analysis ap-
choosing
prisoner
right
the latter the
a
has
pears
predicated
assumption
to be
on the
participation
every
count on the
mem-
against
that Walton’s action
case,
the District and
however,
In
particular
ber.
this
I be-
really
its
corpus proceed-
officials is
a habeas
proffered
lieve that the reason the Board
ing,
though
They
effect
not in name.
concerning
missing signature
court
conclude, relying upon
recent decision in
enough
preclude
was
our
the need for a second
Roach,
(D.C.1995),
Abdullah v.
ment or from
Rath-
er,
injunctive
convincing
showing
‘clear and
evidence’
prayed
declaratory
he
relief,
contrary legislative
should the courts
asked the court to vacate the
intent
he
*13
review,”
judicial
Abbott
finding
prison regula-
to
that he violated two
restrict access
Gardner,
136, 141,
expunge or
from
file Labs.
387 U.S.
tions and to
remove
his
v.
(1967) (citations
challenged
relating
pro-
verse unlawful reviewability is presumption of “The law; it Superior may product not of enacted is common We have held Court pursuant Davis, entertain claims for such relief to law.” 5 Kenneth C. Administrative 921(a)(6) (1995), 28:1, The at 254 D.C.Code which vests Law Treatise 11— juris- jurisdiction “any Superior that court with over civil Court thus had “civil action” matter, complaint, in there is equity, action or other at law or diction over Walton’s See, brought complaint petition in the District of no to treat that as a Columbia.” need Club, e.g., corpus District Columbia v. 670 for such a characteriza- Sierra habeas when of (D.C. 354, ], 1996); contrary pleader’s [ A.2d 358-360 Jan. tion intent. is Speyer Barry, v. 588 A.2d 1159-60
(D.C.1991)
omitted).
(citations
Abdullah,
II.
ll-921(a)(6)
recognized that
we
Section
THE EVIDENCE OF GUILT
jurisdictional
served as an alternative
basis
majority
agree
I
with the
that there was
by prisoner
alleged
for a suit
a
had
that
who
guilt
two
evidence”
of the
“some
Walton’s
legal rights
disciplinary
were
in
violated
disciplinary charges,
Superintendent v.
see
proceedings
against
instituted
him correc-
Hill,
445, 454-55, 105
472 U.S.
S.Ct.
analysis applies
tional authorities.1 That
(1985),
but I find
juice had been altered or enhanced extends, edge doubtless or at least should way. *14 extend, try prisoners to the manner in which Further, guilty the standard for a find- to or from mаke “shoots” other intoxicants ing possession of of under contraband Sec- (one hopes) the limited raw materials avail- 502.11(b) tion is that the substance consti- Our proceed- able to them. review of such Here, “intoxicating beverage.” tute an ings, although apparently by the authorized too, Department the no evi- introduced LRAA, very should therefore be deferential at the hearing dence standard, agree indeed. Under that I that grapefruit juice the pos- that in Walton’s reject position we must this is- on capable “intoxicating.” session was of In sue. fact, hearing the evidence at the testimony Seipel’s this issue was Dr. that a III. of solution “less than 1%” could not alcohol THE REMEDY (Emphasis a normal in intoxicate adult. original.) judge Ad- The trial concluded that response The District’s contention to this justment in Board’s initial written decision point: and to is brief legally was He Walton’s case insufficient. case, Department remanded the case to the The bottom line in this when it is stripped comprehensive Corrections for more complex of the written constitutiоnal is- sues, findings. remedy is it Walton contends that this undisputed that is that Walton was and gallons juice inadequate, that he is entitled bag wrapped had of fruit in a cover, expungement findings the adverse and of in a blanket and and mattress that My prison logical colleagues related documentation. dis- officials made the and and, agree emphatically, so do I. permissible inference that was at- Walton tempting “shoots,” to make or homemade requirement The in the LRAA that correc wine, juice and used the in a manner con- provide adequate tional must officials written trary to the intent of This its issuance. findings prison disciplinary proceedings amply finding supported evidence grounded Supreme pro in the Court’s due guilty he was I II contra- the class and McDonnell, analysis. cess See v. 418 Wolff offenses. band 2963, 2979, 41 94 U.S. S.Ct. L.Ed.2d me, (1974). this, question emerg- judge recognized the decisive The trial To 935 es from these contentions is Wal- and whether ordered Corrections possession apparent appropriate findings. ton’s and de concealment make more large be, imрroperly acquired findings amount of fect in initial thus could and juice been, grapefruit is “some evidence” that he indeed has corrected. In a case such one, attempted My to make homemade wine. as this in which the substantive determi colleagues sustained, emphasize guilt did not has been Walton nation of it would deny altogether incongruous that there his cell. I as was a smell in be treat Walton think, however, effect, and, large should if exonerated that such he had been juice grapefruit expunge proceedings amount of non-alcoholic result of from earth, might simply also be educated discernable to the the face of because
1361 extent, any, if that the draconian did not write the case To the correctional authorities remedy may be first time around. viewed up in sufficient detail the demanded appel- supportable under certain federal agency to make has failed suffi Where I precedents,3 and do believe late other remedy findings, appropriate is to cient with precedents can be reconciled that those be remand directions that the omission Supreme approach to such issues Court’s adequate be findings corrected and that Real, Con- supra, and Sandin v. Ponte v. See, e.g., v. Colum made. Mack District of — ner, -, 115 132 U.S. S.Ct. Servs., Dep’t Employment 651 A.2d bia (1995). Accordingly, my I cast L.Ed.2d (D.C.1994). my opinion, was against import- proportionality vote here, judge proper remedy the trial ing law’s into our correctional facilities the reasonably adopting it. To award acted continuing preoccupation with but dubious than that would constitute a Walton more imperfections preju- no scrivening that cause windfall, than vio rather a correction not affect the merits. dice do rights. Carey Piphus, lation Cf. 1042, 1050,55 L.Ed.2d U.S. points requires out that the LRAA a written statement of the Board’s decision hearing. days
within three 28 DCMR *15 Obviously, findings
§ 512.10. the revised the trial were
which followed court’s remand period. not within that time So far as issued MURPHY, Appellant, Hampton R. discern, however, I can there is no claim that v. prejudiced by delay, this was judicial was was inevitable once review STATES, Appellee. UNITED hold, sought.2 We are nevertheless аsked to No. 94-CF-989. any prejudice, the absence of regulations prison inmate who has violated Appeals. Court of District Columbia consequences be relieved of the of his must 19, Argued Sept. 1995. findings transgression because errors 8, Decided Feb. 1996. days. were corrected within three But opinion- officers correctional are not trained Real,
writers,
491,
v.
497-
Ponte
471 U.S.
cf.
(1985), and the rule for which con- would, my opinion, provide a “reme-
tends
dy” proportion of all It out violation. wholly
would also serious and unneces- cause
sary prison for ad- difficulties conscientious
ministrators, al- compelled who would be go unpunished
low violations inmates to guilt
for
or innocence.
reasons unrelated
I note that in
recognize
79 L.Ed.2d
2.
Board's deci-
S.Ct.
I
have unfavorable collateral conse-
Redding
sion can
held that it was the function of
the court
inmate, e.g.,
quences
in relation to his
for an
judge
to balance the interests
the trial
Wolff,
prospects
parole.
supra,
418 U.S. at
determining
parties
to exercise discretion in
inadequate find-