Russell v. Pallito, No. 321-5-13 Wncv (Teachout, J., February 4, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 321-5-13 Wncv

ELLIOT RUSSELL,
     Petitioner

           v.

ANDREW PALLITO, Commissioner,
Vermont Department of Corrections,
     Respondent

                                               DECISION AND ORDER
                                         Cross-Motions for Summary Judgment

        Petitioner is a prison inmate who seeks Rule 75 review of a disciplinary determination
that he engaged in conduct which disrupts the orderly running of the facility. The issues are
whether the procedures related to the hearing process satisfy due process requirements, and if so,
whether sufficient evidence was presented at the disciplinary hearing to support the
determination. The case is now before the court on cross-motions for summary judgment.

           There is no dispute as to the material facts.

                                                                   Material Facts

       At the time of the incident, Petitioner was a Vermont inmate in the custody and control of
the Commissioner of the Department of Corrections (DOC) serving his sentence at the Lee
Adjustment Center in Beattyville, Kentucky. Petitioner was participating in the prison’s
Adoptable Canine program, in which inmates work one-on-one with shelter dogs, training them
for adoption into permanent homes.

        On Friday, April 5, 2013, Petitioner was told by the head of the Adoptable Canine
program, Donnie Edwards, to bring the dog he was training to the office. Mr. Edwards took the
leash and told Mr. Russell that he was being dismissed from the program for mistreating his dog.
Mr. Edwards must have told Mr. Russell that it was based on what Mr. Edwards had seen on a
videotape of Mr. Russell and his dog, because Mr. Russell, who has consistently denied ever
abusing any dog at any time, asked to see the video. This request was denied as it is standard
practice not to show inmates prison videotape for security reasons.

        That same day at about 5:30 Mr. Russell received a Notice of Hearing for a hearing to
take place on April 10, 2013 based on a charge of “conduct which disrupts the orderly running of
the facility.” The Staff Witness Statement signed by Mr. Edwards on April 5th stated that the
“Date/Time of Incident” was “4-5-13 about 3:00.” The content of the Statement is “Myself and
James Combs was reviewing Pelco Camera and inmate Elliott Russell 331735 mistreating his
dog.” The Inmate Disciplinary Report signed by Mr. Edwards identifies the “Date/Time of
Incident” as 4/5/13 / 1430.” The evidence shows that the information given to Mr. Russell
charges him with mistreating his dog on April 5th at 2:30-3:00 pm.

        A disciplinary hearing was held on April 11, 2013. Petitioner testified that he had never
mistreated this dog or any other. Both the hearing officer, Sergeant Johnny Peters, and the
prison presenter, Gran McIntosh, identified the date of the incident as Friday, April 5. The head
of the Adoptable Canine program, Donnie Edwards, also testified. He had not witnessed the
incident but had viewed the videotape taken of the incident. His testimony was as follows:

               Well, we saw Mr. Russell come into, coming into O wing and, uh, the dog
       that he had turned around and was like going to follow another inmate out so
       Russell grabs his dog and is like wrestling with it on the floor. And he had his
       back kind of to the camera and we saw his arm go up and like he was going to hit
       the dog but we never see, we never saw the blow because when his arm was up he
       came down with it but we couldn’t tell whether he hit the dog or not. And then he
       kept on wrestling with the dog and then he picks the dog up and then he walks up
       and goes into his cell with it.

       Mr. Russell then called as witnesses two inmates who were also participants in the
Adoptable Canine program. Both testified that they had never witnessed Mr. Russell being
abusive toward a dog.

      The first one was asked by the prison presenter, “Was you there, at the present when he
supposedly done this?”

       Witness: “Uh, when was this?”

       Prison presenter: “Friday.”

       Hearing officer: “April 5, out there in the foyer in the hallway door, going to O wing.”

         The second inmate testified that the dog developed a bump on his head on Saturday, the
day after the Friday that the dog was given up. Mr. Russell, when given an opportunity to
question the inmate, stated: “The question I wanted to ask is they’re saying that on Friday, April
5, that I had abused my dog. And, uh, can you tell me what time they said this happened? About
3:00? At about 3:00 on Friday or any other time before then, have you ever witnessed me being
physically abusive to my current dog or any dog before then?” The witness said no.

        When asked by the inmate legal assistant to describe Mr. Russell’s arm action more
specifically, including whether it seemed like a violent blow, Mr. Edwards stated that there was
only one arm movement and that “You could tell by the way that it was on the camera from we
could see that it was, but you know we didn’t see the end of the blow. . . . We just seen his arm
come down.”

       Then Mr. Edwards was asked further questions by the inmate’s assistant, including
whether Mr. Edwards had seen Mr. Russell hit the dog. Mr. Edwards acknowledged that he had
not seen it.


                                                2
      The hearing officer then asked, “Anybody else got any other questions?” At that point
Mr. Russell said, “The thing I want to know, is what time on Friday are you saying that this
happened?”

        Mr. Edwards responded, “Well it wasn’t Friday that it happened. We checked the
PELCO tape and it was on March 26 around, around 8:30.” Mr. Russell followed up with: “In
the morning or. . .?” Mr. Edwards: “In the night.” Mr. Edwards then proceeded to talk about
having taken the dog to the vet on three occasions, including the day before the hearing and the
dog had a hematoma that was “from a awful hard lick in the head.” He further stated that the vet
said it would take 4-5 days for the injury to come up.

       Mr. Russell then sought to clarify the time line with Mr. Edwards:

        Mr. Russell: “Okay, now you saying, you said it would take three to four days for that to
happen. From what Mike Lewis testified to, he said he didn’t see the lump until Saturday April
6. So what you’re saying is is that you seen, you saw me hit the dog on March 26. That’s a full,
uh, that’s about 12 days. . .”

         Mr. Edwards: “No, we didn’t. I didn’t say that that’s when that happened. . .I’m saying
that I seen you abuse the dog on March 26. . .but the, but the lick could have come after that.”

       Mr. Russell: “. . .I just want to know, did you physically see me abuse that dog?”

       Mr. Edwards: “. . .And the thing, and I want to add too that I’ve had several reports
through the staff that Mr. Russell has been abusive and has, and has been hard on the dogs.” The
hearing officer immediately stated that such a statement could not be used as part of the
evidence. Mr. Russell then requested that the video be preserved.

        After a recess, the hearing officer announced that Mr. Russell was convicted of a B-21
violation for holding down his dog and raising his right arm in a striking motion and assessed a
penalty of 11 days of disciplinary segregation. Mr. Russell was told he had seven days to appeal.

       He appealed, and the Superintendent upheld the determination on April 23, 2013 with the
following explanation: “Although the camera did not capture footage of the actual contact
between your hand and the dog due to its angle, it did get images of your arm in a striking
motion and the dog had injuries consistent with being struck in this way. . . .” The video was not
preserved. It was taped over by the end of April.

                                          Conclusions of Law

        Mr. Russell challenges the conduct of the notice and hearing on procedural grounds based
on standards required by the United States Constitution, the Vermont Constitution, 28 V.S.A. §
852(b)(1), (2), (3), and (5), and DOC Facility Rules and Inmate Discipline Rule 410.01. One
specific claim is that Mr. Russell did not have “advance written notice of the claimed violation,”
Wolff v. McDonnell, 418 U.S. 539, 563 (1974), to ensure that the accused can “marshal the facts
in his defense and to clarify what the charges are, in fact,” id. at 564.



                                                3
         The record of the hearing makes clear that based on the content of the hearing notice, all
those involved other than Mr. Edwards assumed that the time of the alleged conduct was on
Friday, April 5th, at about 3:00 pm. The prison counselor and the hearing officer both identified
this as the date of the alleged offense, and Mr. Russell’s testimony and examination questions
show that he understood this to be the date of the alleged offense. Mr. Edwards did not give the
correct date in his direct testimony, and he did not correct any of these three when they
erroneously identified, during the testimony, the date as April 5th. It was only during the final
wrap-up cross-examination opportunity that Mr. Russell had, when Mr. Russell questioned Mr.
Edwards specifically about the exact time of the alleged conduct “on Friday” (April 5), that Mr.
Edwards finally clarified that the video was taken March 26th, ten days earlier.

        There might be some circumstances in which the correction of an incorrect date late in a
hearing is not prejudicial to an accused, specifically when what is at issue is an event that
everyone recognizes took place although they may disagree about exactly what happened. In
this case, it was prejudicial as a matter of fair procedure for several reasons.

         First, Mr. Russell did not know what event was shown on video. It did not show an
incident known to Mr. Russell, but footage from a routine security camera. The record is clear
that Mr. Russell did not have an opportunity to see what the video showed or learn in advance
what occurrence it captured. Even though there was a valid reason for him not to see it, without
at least a description of what it showed, Mr. Russell could not respond to the accusation in a
meaningful way.

        Second, the notice given to Mr. Russell was affirmatively misleading. It identified a
specific date and time for the alleged wrongful conduct—Friday, April 5 at 3:00 pm—which was
10 days later than the actual date of the alleged wrongful conduct. This prejudiced Mr. Russell
in that he did not have the opportunity to prepare for the hearing by (a) knowing what date to
think back to in an effort to recall his own version of what occurred and (b) being able to call
relevant witnesses.

        Third, Mr. Edwards sought to corroborate mistreatment that he inferred from what he saw
on the video with evidence of an injury described by a vet of which Mr. Russell did not have
notice and could not have related to the alleged wrongful conduct because of the gap in time. If
the alleged conduct had occurred on April 5, the vet’s description of a hematoma that took 4-5
days to develop and was a hematoma lanced on April 10 would have been powerful
corroborating evidence of injury inflicted on a dog on April 5th. But if the alleged conduct was
on March 26, there was insufficient evidence to link a blow on that date to a hematoma that was
lanced on April 10.1

       Thus, for the corroborating evidence to have any relevance at all, the exact date was
important. It was not until late in the hearing, after all witnesses had given both direct and cross-
examination testimony and Mr. Russell was asking a final cross-examination question about the

1
  While the testimony of Mr. Edwards provides some evidence of at least a threatening violent gesture to a dog on
March 26th, which may be disruptive to the orderly operation of the dog training program within the facility, there is
no evidence of a link between March 26 conduct and a hematoma injury to the dog within a 4-5 day time frame from
that date. There was also no evidence of any blow that would have produced a hematoma on either April 6 or April
10.

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specific time of the alleged conduct, that he was finally informed that the accurate date of the
alleged conduct was 10 days earlier than he had been given to understand. If Mr. Edwards
sought to rely on the dog’s hematoma on April 10th as evidence of mistreatment, Mr. Russell had
no advance notice of that allegation at all.

        The DOC argues that because Mr. Russell testified that he never abused any dog at any
time, his testimony presumably would have been the same had the date of the alleged offense
been correctly identified, and thus there is no prejudice. Constitutional violations are subject to
the harmless error rule. State v. Hunt, 150 Vt. 483, 489-90 (1988). Under this standard, the
court may find an “error harmless only if we can state a belief that the error was harmless beyond
a reasonable doubt.” State v. Jackowski, 2006 VT 119, ¶ 8, 181 Vt. 73. In this case, it is not
reasonable to presume that Mr. Russell’s defense would have been the same andr no more
successful, had he known the correct date of the alleged offense. The court cannot find beyond a
reasonable doubt that the failure to provide accurate written notice was harmless. For this
reason, his conviction must be vacated

         The question, then, is whether the DR should be expunged or whether this case should be
remanded for a new hearing at which Mr. Russell has proper notice and a fair opportunity to
defend. The sole evidence against Mr. Russell was the video footage that no longer exists. The
court has no way of knowing whether the few witnesses who saw that footage remain available
to testify as to what they observed. If not, expungement is the only fair outcome in this case. If
such witnesses are available and remain able to competently testify, and the DOC decides to
proceed with a new hearing, then the lack of the videotape is not necessarily prejudicial. Mr.
Russell would not be entitled to view the videotape and his appeals from any conviction would
not require the reviewing authority or this court to view the videotape.

Accordingly, Petitioner’s Motion for Summary Judgment is granted. Respondent’s Motion for
Summary Judgment is denied. This case will be remanded to the DOC, which has discretion to
expunge Mr. Russell’s DR or proceed with a new hearing based on the charge of abuse alleged
to have occurred on March 26, 2013.

                                            ORDER

       Attorney Lancaster shall prepare a Judgment based on this decision.

       Dated at Montpelier, Vermont, this _____ day of February, 2015.


                                                            ________________________
                                                            Hon. Mary Miles Teachout
                                                            Superior Court Judge




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