                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                            DOUGLAS D. YOKOIS,
                             Petitioner/Appellant,

                                         v.

           ARIZONA DEPARTMENT OF CORRECTIONS, et al.
                      Respondents/Appellees.

                              No. 1 CA-CV 17-0120
                                FILED 10-16-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-008175
               The Honorable Lori Horn Bustamante, Judge
                 The Honorable Teresa A. Sanders, Judge

                                   AFFIRMED


                                    COUNSEL

Douglas D. Yokois, Florence
Petitioner/Appellant

Arizona Attorney General’s Office, Phoenix
By Jonathan H. Schwartz, Michael E. Gottfried
Counsel for Respondent/Appellee Arizona Department of Corrections
                          YOKOIS v. ADC, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


C R U Z, Judge:

¶1             Douglas D. Yokois, a prisoner in the Arizona Department of
Corrections (“ADC”) appeals a superior court order denying special action
relief from a finding by ADC that he violated prison regulations and
imposing discipline for the infraction. Yokois contends the superior court
abused its discretion by (1) disregarding ADC’s purported violations of his
right to due process at the disciplinary hearing; (2) holding him, a pro se
litigant, to the same standards as ADC’s attorneys in litigating the matter;
and (3) ignoring ADC’s alleged interference with his rightful access to the
court. For the following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY1

¶2            On February 22, 2016, an ADC Correctional Officer (“CO”)
ordered Yokois to pack up his belongings for a move to another cell.
Because Yokois did not pack quickly enough, some COs ushered him to his
new cell while other COs remained behind to finish packing his things.
Once at the new cell, Yokois remained outside while the COs brought in his
belongings and dumped them onto the bed.

¶3            While unpacking Yokois’ things, one of the COs discovered a
weapon among Yokois’ belongings—a 4” long and 1” wide piece of plastic
sharpened to a point and attached to a small metal handle. Prison
authorities initiated disciplinary proceedings. Three days later, CO Lopez
delivered to Yokois an “Inmate Disciplinary Report” that stated he was
charged with possession of a weapon. Yokois signed the document,
acknowledging that he was served notice of the charge and that he received
a copy of the report.



1      We view the facts contained in the record before the ADC hearing
officer and testimony of ADC officers in the light most favorable to
upholding the superior court’s ruling. See Hornbeck v. Lusk, 217 Ariz. 581,
582, ¶ 2 (App. 2008).


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                           YOKOIS v. ADC, et al.
                           Decision of the Court

¶4            At the hearing on the charged infraction, Yokois read from a
prepared statement, but refused to provide the Disciplinary Hearing
Officer, Captain Schitter, a copy of the statement after he asked for it. The
evidence consisted of Yokois’ statement; three witness statements; reports
by the COs involved in moving Yokois between cells and discovering the
weapon; and reports generated as part of the disciplinary hearing process.
The three witness statements entered in evidence on Yokois’ behalf were
obtained by way of written answers to questionnaires submitted by Yokois
to the witnesses via ADC staff. Reviewing this evidence, Captain Schitter
found it “more probably true than not” that Yokois was guilty of possessing
a dangerous weapon. At the conclusion of the hearing, Captain Schitter
stated in writing (and later repeated in an affidavit) that he based his
decision “on the Disciplinary Report, the Information Reports, the
Investigative Reports and copies of physical evidence.” Yokois signed the
form, received a copy, and was assessed 360 days of lost earned-release
credit (“ERC”), along with additional punishment not relevant to this case.

¶5            After two unsuccessful administrative appeals, Yokois
petitioned the superior court for special action relief. The superior court
accepted jurisdiction but, finding that Yokois was not denied due process
throughout his administrative hearing and appeals, denied relief. Yokois
timely appealed to this court, then filed a motion in the superior court to
vacate and set aside the special action judgment. We granted Yokois’
subsequent motion to suspend his appeal until the superior court ruled on
his motion to vacate and set aside. The superior court denied Yokois’
motion.

¶6           In his appeal, Yokois claims the superior court’s denial of his
special action violates his due process rights. We have jurisdiction
pursuant to Arizona Revised Statutes sections 12-120.21(A)(1), and 12-
2101(A)(1).

                               DISCUSSION

¶7            When the superior court accepts jurisdiction over a non-
statutory special action and rules on the merits, as the court did here, we
review for abuse of discretion. Bazzanella v. Tucson City Court, 195 Ariz. 372,
374, ¶ 3 (App. 1999) (citation omitted). A court abuses its discretion where
the record fails to provide substantial support for its decision or the court
commits an error of law in reaching the decision. Grant v. Ariz. Pub. Serv.
Co., 133 Ariz. 434, 456 (1982); see also Torres v. N. Am. Van Lines, Inc., 135
Ariz. 35, 40 (App. 1982) (discretion abused if “manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons”).


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                            YOKOIS v. ADC, et al.
                            Decision of the Court

I.     Due Process During Yokois’ ADC Disciplinary Hearing

¶8             After a state has granted ERC to an inmate, it may not rescind
or withdraw the ERC without certain due process. See Wolff v. McDonnell,
418 U.S. 539, 557 (1974). Imprisonment does not strip an inmate of his rights
under the Due Process Clause; however, an inmate’s rights are “subject to
restrictions imposed by the nature of the regime to which [prisoners] have
been lawfully committed.” Id. at 556. More specifically, “[p]rison
disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply.” Id.

¶9              Before a prisoner may be stripped of ERC as a disciplinary
measure, due process requires he receive: “(1) advance written notice of
          2

the disciplinary charges; (2) an opportunity, when consistent with
institutional safety and correctional goals, to call witnesses and present
documentary evidence in his defense; and (3) a written statement by the
factfinder of the evidence relied on and the reasons for the disciplinary
action.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985)
(citing Wolff, 418 U.S. at 563-67). This is known as the three-factor Wolff test.

¶10           Due process further requires that “some evidence” must
support a finding of guilt in such a hearing. Hill, 472 U.S. at 455. This
standard is met “if there was some evidence from which the conclusion of
the administrative tribunal could be deduced.” Id. (internal quotation and
citation omitted). In ascertaining whether this standard was met, the court
does not decide afresh the credibility of witnesses, weigh the evidence, or
reexamine the full record—“the relevant question is whether there is any
evidence in the record that could support the conclusion reached by the
disciplinary board.” Id. at 455-56 (emphasis added) (citations omitted).

¶11           Regarding the first Wolff factor, the record reflects that prison
authorities gave Yokois a copy of his Inmate Disciplinary Report eighteen
days before his hearing—well ahead of the constitutionally required
twenty-four hours. Yokois argues he was not allowed to keep a copy of the
form. CO Lopez gave a sworn statement to the contrary. In any event, the
purpose of providing an inmate with a copy of the charges is “to inform
him of the charges and to enable him to marshal the facts and prepare a


2      Yokois argues his disciplinary five-month assignment to Special
Management Unit II also implicated the due process protections articulated
in Wolff. 418 U.S. at 557. We agree. However, as discussed in the context
of his deprivation of ERC claim, we conclude he was afforded those due
process protections.


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                          YOKOIS v. ADC, et al.
                          Decision of the Court

defense.” Wolff, 418 U.S. at 564. The summary of the charge on the form
Yokois signed was stated in just three sentences, only the first of which
would be relevant to Yokois in preparing his defense. Yokois does not
allege that any inability to retain a copy of the Inmate Disciplinary Report
prejudiced him in any way. Yokois had eighteen days after being informed
of the charge to prepare for the hearing, and within that time, he obtained
three witness statements with responses to his written questions and
drafted a five-page statement that he presented at his hearing. He does not
allege that ADC failed to provide him notice of the charge against him, nor
does he argue what he might have done differently in the preparation of his
defense had the form not been taken from him. Accordingly, even if he was
not allowed to keep a copy of the form, he has shown no prejudice. See
Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991) (“[I]t is entirely
inappropriate to overturn the outcome of a prison disciplinary proceeding
because of a procedural error without making the normal appellate
assessment as to whether the error was harmless or prejudicial.”).

¶12            Next, Yokois was not denied due process during the hearing
itself. Captain Schitter considered his three witness statements at his
hearing, even though Yokois submitted them late. Similarly, Captain
Schitter considered Yokois’ own five-page statement even though Yokois
refused to provide a copy for the hearing record. Yokois complains on
appeal that he was unfairly deprived of the opportunity to call witnesses to
testify in person on his behalf. ADC argues he waived any argument about
live witnesses because he did not ask for any live witnesses to be called.
Yokois argues in response that any request would have been futile, given
ADC’s blanket policy against allowing inmates to call live witnesses at
disciplinary hearings. In McCann v. Coughlin, the Second Circuit held that
due process may be improperly denied when an inmate fails to request live
witnesses “on the basis of the overwhelming and uncontradicted evidence
that prisoners at [the prison] had never been allowed to call witnesses.” 698
F.2d 112, 123 (2d Cir. 1983).

¶13           We find McCann persuasive. Regardless, while Yokois argues
that ADC maintains such a blanket policy, the record is devoid of evidence
that ADC adheres to a policy against permitting live witness testimony in
every case. In fact, the record suggests that the issue of live witness
testimony was given particularized consideration, as due process requires.
In her sworn statement, CO Lopez indicated Yokois presented security
concerns, noting that “Yokois was in maximum custody at the time of [the]
investigation,” which meant “that he must be restrained at all the limited
times when he would be removed from his cell.” Even if concerns
regarding his proximity or physical access to other inmate witnesses was


                                     5
                           YOKOIS v. ADC, et al.
                           Decision of the Court

not provided contemporaneously with his hearing, “prison officials may
choose to explain their decision at the hearing, or they may choose to
explain it later.” Ponte v. Real, 471 U.S. 491, 497 (1985) (internal quotations
omitted). So long as the reasons provided relate logically to prison safety
considerations and institutional goals, the due process concerns outlined in
Wolff are satisfied. See Ponte, 471 U.S. at 497. We hold that reasonable
justification was provided by ADC that relates logically to prison safety,
and that Yokois’ due process rights were not violated by the requirement
that his witnesses provide hearing testimony in written form.

¶14            Wolff‘s final prong requires the prison to give an inmate who
is adjudicated guilty a written decision stating the evidence and reasoning
on which the decision is based. At the conclusion of his hearing, Yokois
received a copy of Captain Schitter’s written ruling against him. Captain
Schitter stated in affidavit, and the written ruling reflects, that in finding
Yokois committed the infraction, he “relied on the Disciplinary Report, the
Information Reports, the Investigative Reports and copies of physical
evidence.” This procedure satisfied Wolff’s third prong. In addition, we
have reviewed this evidence, and find it sufficient to meet the requirement
in Hill that “some evidence” support the conclusion that Yokois committed
the infraction. See 472 U.S. at 455.

¶15           Because Yokois’ hearing satisfied due process, the superior
court did not abuse its discretion when it denied special action relief.

II.    The Standard to Which Pro Se Litigants Are Held

¶16          Yokois next argues the superior court improperly held him to
the same standard as ADC attorneys in matters of court procedure and
briefing requirements. Because “[w]e hold unrepresented litigants in
Arizona to the same standards as attorneys,” Yokois’ argument must fail.
Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017).

III.   Yokois’ Access to the Courts

¶17           The record does not support Yokois’ claims that ADC and/or
the superior court committed fraud, forgery, perjury, and intentional delay
as a means of interfering with his access to the courts. Although he claims
opposing counsel and ADC attempted to thwart his efforts to pursue
administrative and judicial review of the disciplinary proceedings, the
record shows he received notice of the charge against him, obtained witness
statements, was able to prepare filings with citations to legal authority,
effected service upon pertinent parties, and argued on his own behalf.



                                      6
                           YOKOIS v. ADC, et al.
                           Decision of the Court

¶18           Moreover, despite any difficulties he may have encountered
in the process, Yokois does not allege, let alone demonstrate, that he
suffered any prejudice because of the conduct of opposing counsel or ADC.
Since we “will uphold a denial of special action relief if our review reveals
any valid reason for so doing,” Carrington v. Ariz. Corp. Comm’n, 199 Ariz.
303, 305, ¶ 6 (App. 2000), and because our thorough review of the record
reveals no error of law, Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001), we
conclude Yokois was not denied access to the courts.3

                              CONCLUSION

¶19          We affirm the superior court’s order declining relief on
Yokois’ special action petition.




                             AMY M. WOOD • Clerk of the Court
                             FILED: AA




3     To the extent Yokois appeals the superior court’s denial of his
Motion to Vacate and Set Aside Judgment, because he advances the same
arguments for overturning the court’s ruling on that motion as he did for
overturning the court’s judgment, we similarly affirm the order denying the
motion.


                                         7
