        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Personal             No. 69386-7-1
Restraint of:
                                          DIVISION ONE
STEVEN J. FERGUSON,
                                          UNPUBLISHED OPINION
                Petitioner.
                                          FILED: December 23, 2013


       Per Curiam. Steven Ferguson filed this personal restraint petition challenging

the sanctions imposed following a prison disciplinary hearing. Because the written

statement of reasons for the disciplinary action is insufficient to support the sanctions

imposed in this case, we grant the petition and remand to the Department of

Corrections (DOC) for a new hearing.

       During a random cell search, corrections officers found a "green leafy substance

wrapped in paper [and] burnt at one end" in the cell shared by Ferguson and another

inmate. Testing indicated the presence of marijuana. A corrections officer questioned

Philips, Ferguson's cellmate, and stated in a serious infraction reportthat while Philips

denied ownership, he was "very evasive" and had a "difficult time making eye contact."

Prison staff charged both Ferguson and Philips with violating WAC 137-25-030 (603)

(possession, introduction, or transfer of any narcotic, controlled substance, illegal drug,

unauthorized drug, or drug paraphernalia).

       At Ferguson's disciplinary hearing, he denied knowledge of the drugs:

       There was no way, you know what I'm saying, that Iwas a part of anything that
       was found in that room ... I got too much going on. I got [extended family visits]
       on the line, my wife and kids come up every other two weeks. You dig what I'm
       saying? I [sic] fought for medium and I ain't gonna just blow it on no bull shit ....I
       have no knowledge of what Mr. Philips was doing in that room.
No. 69386-7-1/2



       The hearing officer indicated that he had also received the following written

witness statement from Philips exonerating Ferguson: "[t]he contraband was mine.

[Ferguson] had nothing to do with it."1
       After examining the confiscated substance, the hearing officer explained to

Ferguson that he was guilty of the charge according to the cell tag rule. That rule

provides:

       If contraband or other violation is discovered in an area under control of the
       inmate (such as within the confines or contents of a cell), the contraband or other
       violation shall be constructively attributed to the inmate(s) assigned to that area,
       unless the inmate(s) can establish a lack of involvement in the infraction at the
       disciplinary hearing.

WAC 137-28-160.

       The Hearing Officer found Ferguson guilty of the infraction. The hearing officer

cited "staff written testimony and evidence presented" as the basis for the decision and

imposed sanctions, including the loss of 180 days' good time credit.

       Ferguson argues that he was denied a fundamentally fair proceeding because

the finding of guilt was based on less than constitutionally sufficient evidence and the

hearing officer did not adequately explain the reasons for the decision, in light of the

evidence he presented to rebut the presumption under the cell tag rule.

       This court will not disturb the result of a prison disciplinary proceeding unless

action taken was "so arbitrary and capricious as to deny the petitioner a fundamentally

fair proceeding so as to work to the offender's prejudice." In re Pers. Restraint of

Grantham, 168 Wn.2d 204, 215, 227 P.3d 285 (2010); In re Pers. Restraint of

1 This statement was consistent with Philips' testimony at his own disciplinary hearing where he
explained that he "found it and I brought it back to the cell. And that's how they pretty much got
me with it." He said he probably would have given the drug away to another inmate if he had not
been caught.
No. 69386-7-1/3



Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984). A disciplinary proceeding is not

arbitrary and capricious if the inmate was afforded the applicable minimum due process

protections and the decision was supported by constitutionally sufficient evidence. In re

Pers. Restraint of Krier. 108 Wn. App. 31, 38, 29 P.3d 720 (2001). The evidentiary

requirements of due process are satisfied if there is "some evidence" in the record to

support a prison disciplinary decision. In re Pers. Restraint of Johnston, 109 Wn.2d

493, 497, 745 P.2d 864 (1987). The due process afforded to inmates facing disciplinary

sanctions includes a written statement of the evidence relied upon and the reasons for

the disciplinary action. Grantham. 168 Wn.2d at 215-16; In re Pers. Restraint of

Gronquist, 138 Wn.2d 388, 396-97, 978 P.2d 1083 (1999).

       Ferguson was clearly chargeable with the infraction based the cell tag rule and

DOC policy. WAC 137-28-160; see also DOC Policy 420.320 (if impossible to identify

ownership of contraband, all offenders should be charged with infraction and given the

opportunity to establish lack of involvement); In re Pers. Restraint of Anderson. 112

Wn.2d 546, 772 P.2d 510 (1989) (rebuttable presumption of involvement according to

cell tag rule does not violate substantive due process). And despite the lack of a direct

connection to the drugs, the mere presence of drugs in the cell where an offender is

housed is sufficient to constitute "some evidence" to support a finding of guilt. See

Anderson, 112 Wn.2d at 550 (a knife found in the cell was some evidence that any one

or all four of the cellmates, either possessed the knife, placed the knife in the cell or at

least knew of its presence in the cell).

       However, according to DOC's own policy, an offender has the opportunity to

rebut the presumption of involvement. Ferguson undisputedly presented such
No. 69386-7-1/4



evidence. But after hearing this evidence, the hearing officer merely explained that guilt

was presumed under the cell tag rule. The DOC contends that the hearing officer must

have determined that the rebuttal evidence was not credible and therefore concluded


that Ferguson failed to rebut the presumption. This is possible. But it is also possible

that the hearing officer misapplied the DOC's cell tag rule as an irrebuttable

presumption. Based on transcript and the statement of reasons for the disciplinary

action, it is impossible to tell.

       Under these circumstances, we are satisfied that Ferguson has established a

basis for relief by showing that he was not afforded his due process rights during the

disciplinary proceedings.

       Accordingly, we grant the petition and remand to DOC to conduct a hearing at

which the minimum due process requirements are met.2


                                        For the court:



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2 We need not reach Ferguson's argument that the sanctions exceeded those authorized under
DOC policy.
