     IN THE SUPREME COURT OF THE STATE OF DELAWARE

 JOHN E. MILLER,                        §
                                        §   No. 633, 2015
       Plaintiff Below-                 §
       Appellant,                       §
                                        §   Court Below—Superior Court
       v.                               §   of the State of Delaware
                                        §
 BRIAN REYNOLDS, BRUCE                  §   C.A. No. N14C-06-083
 BURTON, PERRY PHELPS,                  §
                                        §
       Defendants Below-                §
       Appellees.                       §

                          Submitted: March 4, 2016
                           Decided: May 9, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                 ORDER

      This 9th day of May 2016, upon consideration of the parties’ briefs

and the record below, it appears to the Court that:

      (1)    The appellant, John Miller, filed this appeal from the Superior

Court’s final order, dated November 18, 2015, which denied reargument of

its November 5, 2015 order granting summary judgment to the appellees on

Miller’s complaint challenging a prison disciplinary hearing. Miller is an

inmate incarcerated at the Vaughn Correctional Center (“VCC”).           The

appellees are employed by the Department of Correction (“DOC”). We find
no merit to Miller’s appeal. Accordingly, we affirm the Superior Court’s

judgment.

      (2)    The record reflects that Miller obtained a $6540 default

judgment from the Justice of the Peace Court against a former inmate,

Robert Dorn. Miller transferred the default judgment to the Superior Court

in Civil Action No. S12J-05-282 and sought to execute on it by filing a lien

against Dorn’s real property. On February 15, 2013, the Superior Court held

a hearing on Dorn’s motion to stay the scheduled Sheriff’s sale of his

property. Both Miller and Dorn appeared at the hearing.

      (3)    During the course of that proceeding, the Superior Court asked

Miller why Dorn owed him money. Miller explained that he and Dorn had

entered into a contract while they were both in prison together. Miller

explained that he contracted to “look[] out for [Dorn’s] best interests and,

you know, other items that came up. I wouldn’t call it protection, body

guard services. The man is a handful, to say the least.”1 Miller stated on the

record that he explained to Dorn that if Dorn did not want his help, Dorn had

the option to go into protective custody or he could rely on the prison guards

to protect him, but Dorn chose to “man-up and stay out on the compound



1
 Hearing Transcript at 3, Miller v. Dorn, C.A. No. S12-05-282 (Del. Super. Feb. 15,
2013).


                                        2
and around … all the inmates.”2 When the Superior Court questioned the

legitimacy of such a contract, Miller stated that “it is for a fact, it’s against

the rules for inmates to enter into contracts, but I didn’t find anything that

made it illegal or against the law.”3

           (4)   After some discussion on the record, Dorn agreed to write

Miller a check for $3200 in settlement of Miller’s default judgment. The

Superior Court stayed the Sheriff’s sale of Dorn’s property. Because Miller

was not permitted to carry Dorn’s check back into the prison, Miller asked

the Superior Court to mail the check to the warden of the prison with a letter

from the judge explaining the situation so the warden would deposit the

check into Miller’s account for him. After the warden received the letter

from the Superior Court judge enclosing the check from Dorn to Miller, the

DOC opened an investigation into the circumstances regarding Miller’s

judgment against Dorn.

           (5)   On April 17, 2013, DOC Lieutenant Frank Kromka received a

copy of the transcript of the February 15, 2013 hearing in Miller v. Dorn.

As a result of that transcript, Kromka filed an incident report the same day

charging Dorn with violating multiple DOC rules, including “extortion,


2
    Id. at 4.
3
    Id.


                                        3
blackmail, or protection” and “bartering.”           Kromka also filed a

corresponding disciplinary report. Miller signed a copy of that report the

same day, indicating that he received a copy of the charges against him, pled

not guilty to the allegations, and understood that a hearing would be held.

Miller specifically indicated on his signed notice that he did not request

counsel or witnesses to be present on his behalf at the hearing, but he did

request that his accuser, Kromka, be present.

      (6)   The disciplinary hearing was held on May 2, 2013 before

appellee Staff Lieutenant Brian Reynolds, but was continued after several

hours so that Reynolds could conduct a further investigation by interviewing

two people identified by Miller as witnesses. Reynolds talked to the two

individuals identified by Miller and, without reconvening the hearing, issued

his written decision finding Miller guilty of the charged violations on May 7,

2013. The decision set forth Reynolds’ specific factual findings in support

of each charge. The decision recommended that Miller be punished by

losing 730 days of earned good time because of the egregious nature of

Miller’s contract for protection with Dorn and Miller’s past history of

conduct. After Miller appealed the decision to Captain Bruce Burton and

former VCC Warden Perry Phelps, the violations were upheld but the

sanction was reduced to a loss of 365 days of good time.



                                      4
       (7)    On June 10, 2014, Miller filed a complaint in the Superior

Court, alleging that the disciplinary hearing violated his rights. On initial

review of Miller’s complaint under 10 Del. C. § 8803(b),4 the Superior Court

issued an order, dated July 14, 2014, summarily dismissing Miller’s claims

seeking to appeal the outcome of the disciplinary proceedings but allowing

his claims concerning the disciplinary process to move forward.5 Thereafter,

the parties filed cross-motions for summary judgment. On November 5,

2015, the Superior Court denied Miller’s motion for summary judgment and

granted the defendants’ motion for summary judgment, holding that Miller

had failed to establish that he was denied due process at the prison

disciplinary hearing. On November 18, 2015, the Superior Court denied

Miller’s motion for reargument. This appeal followed.

       (8)    Miller enumerates seven overlapping issues in his opening brief

on appeal. The gist of his arguments is that the Superior Court erred in

granting summary judgment on his procedural due process claims because
4
  10 Del. C. § 8803(b) (2013). Section 8803(b) permits the reviewing court, after
granting a motion to proceed in forma pauperis, to summarily dismiss an indigent
plaintiff’s complaint if the claims are factually or legally frivolous or malicious.
5
  See Proctor v. Taylor, 2002 WL 1058187 (Del. May 23, 2002) (affirming the Superior
Court’s summary dismissal of the plaintiff’s appeal from the decision of the prison
disciplinary board because the Superior Court had no constitutional or statutory
jurisdiction to review the DOC’s disciplinary decision); State v. Cubbage, 210 A.2d 555,
564 (Del. Super. 1965) (holding that the courts have no jurisdiction to sit in judgment of
administrative decisions of correctional authorities absent an “arbitrary and capricious
abuse of discretion” or “a deprivation or infringement of constitutional rights of
inmates”).


                                            5
there were material issues of fact in dispute and because the Superior Court

incorrectly interpreted Wolff v. McDonnell.6 Miller also includes a vague

claim that the Superior Court erred in summarily dismissing his claims

challenging the DOC’s factual findings and disciplinary sanction.

          (9)     We find no merit to Miller’s appeal. Although the federal

Constitution does not guarantee a right to good time credit, the United States

Supreme Court recognized in Wolff v. McDonnell that, if the State has

created a statutory right to good time, as Delaware has done, then a prisoner

is entitled “to those minimum procedures appropriate under the

circumstances” to ensure that “the state-created right [to good time] is not

arbitrarily abrogated.”7      The minimum requirements of procedural due

process that must be provided to a prisoner facing the loss of good time as

the result of a prison disciplinary hearing are: “(1) advance written notice of

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




6
    418 U.S. 539 (1974).
7
    Id. at 557.


                                        6
action.”8 Prison officials have discretion to refuse to call witnesses, so long

as the reasons for doing so meet due process requirements.9

          (10) Contrary to Miller’s suggestion, the determination of whether

the standard is satisfied does not require an examination of the entire record,

an independent assessment of the credibility of witnesses, or a weighing of

the evidence considered by the disciplinary authority.10 Judicial review of a

prison disciplinary decision is limited to ensuring that the prisoner was

afforded certain minimal procedures, that the action against him was not

arbitrary, and that the ultimate decision is supported by “some evidence in

the record.”11

          (11) The record in this case reflects that Miller was given advance

written notice of the disciplinary charges against him and was informed in

that written notice that he could be represented and that he could present

witnesses. Miller indicated by his signature that he neither desired counsel

nor wished to present any witnesses.                Before the hearing, Miller was

permitted to file a 13-page document with 4 pages of attachments, setting




8
    Superintendent v. Hill, 472 U.S. 445, 454 (1985).
9
    Ponte v. Real, 471 U.S. 491, 497 (1985).
10
     Superintendent v. Hill, 472 U.S. at 455.
11
     Id at 454.


                                                7
forth his defenses and objections. In that document, Miller first requested

the opportunity to present six witnesses on his behalf.

       (12) Miller sought to present witnesses to establish that the DOC

officials were aware of Miller’s alleged misconduct and delayed bringing

disciplinary charges against him in violation of an alleged requirement that

charges be brought within 24 hours.             Notwithstanding Miller’s belated

identification of these witnesses, Reynolds, the hearing officer, postponed

making any final decision on the outcome of the hearing until he interviewed

the only two witnesses who allegedly could provide relevant information. 12

In Reynolds’ affidavit attached to the State’s motion for summary judgment,

Reynolds stated that one witness, a prison paralegal, denied having any

knowledge about the investigation into Miller’s misconduct.                 The other

witness, a prison official, told Reynolds that the disciplinary report had been

completed within 24 hours of receipt of the Superior Court hearing

transcript.

       (13) After completing those interviews, Reynolds issued a written

decision setting forth the evidence he relied on in support of each violation

12
   Of the six witnesses identified by Miller, one was deceased and one, Robert Dorn, was
no longer in DOC custody. Two other witnesses, both DOC officials, were determined to
be unnecessary because Reynolds stipulated to the fact for which Miller sought their
testimony (namely, that DOC officials had been aware of Miller’s alleged misconduct
since at least March when the Superior Court wrote the warden enclosing Dorn’s check to
Miller).


                                           8
found. Reynolds’ decision set forth the justification for his recommended

sanctions. Under these circumstances, Miller received all of the due process

protections to which he was legally entitled. The action against him was not

arbitrary, and there was more than “some evidence” to support the findings

and the disciplinary action taken.

      (14) After careful consideration of the parties’ briefs and the record

on appeal, it is clear that the Superior Court’s judgment must be affirmed.

Upon de novo review, we find no error in the Superior Court’s grant of

summary judgment to the defendants on Miller’s procedural claims or in its

summary dismissal of Miller’s claims attempting to appeal the substance of

the DOC disciplinary proceeding.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                      BY THE COURT:

                                      /s/ Karen L. Valihura
                                             Justice




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