Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-393

                                        MARCH TERM, 2011

 Tyrone Byrd                                           }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Superior Court, Washington Unit,
                                                       }    Civil Division
                                                       }
 Andrew Pallito, Bob E. Arkley,                        }    DOCKET NO. 423-6-09 Wncv
 Jonathan Bruce and Department of                      }
 Corrections                                           }

                                                            Trial Judge: Geoffrey W. Crawford

                          In the above-entitled cause, the Clerk will enter:

        Plaintiff inmate appeals the superior court’s order granting the Vermont Department of
Corrections summary judgment with respect to plaintiff’s V.R.C.P. 75 action challenging a
disciplinary violation found by the Department. We affirm.

        On March 29, 2009, plaintiff was issued a disciplinary report for fighting where bodily
injury is attempted or carried out. A due process hearing was held on April 2, 2009. The
Department submitted the March 29 disciplinary report, staff reports from several correctional
officers, an investigation report from another officer, and two confidential informant forms.
Plaintiff testified on his own behalf. Following the hearing, the hearing officer concluded that
plaintiff was guilty of the charged infraction and ordered that he be placed in disciplinary
segregation for twenty-four days. On administrative review, the superintendent upheld the
hearing officer’s conclusion. Defendant filed a Rule 75 action to the civil division of the
superior court, which granted summary judgment to the Department, concluding that the body of
evidence presented against plaintiff met the relaxed standard in prison disciplinary cases.

        Plaintiff appeals to this Court, arguing that the hearing officer denied him due process by
not conducting an independent assessment of the reliability of the confidential informants, by
failing to disclose the substance of the statements of the two confidential witnesses, and by
refusing to accept into evidence the testimony or written statement of the inmate allegedly
injured by plaintiff. He also argues that the trial court erred in concluding that the evidence
supported the disciplinary report.

        Regarding the first two claims of error, plaintiff relies primarily upon Herring v.
Gorczyk, 173 Vt. 240, 241 (2001), in which we affirmed the trial court’s order granting summary
judgment in favor of the plaintiff inmate based upon our conclusion that “plaintiff’s due process
rights at the disciplinary hearing were violated by the hearing officer’s reliance on statements of
confidential informants without any independent assessment of the informants’ credibility.” In
Herring, we set forth a nonexclusive list of four ways to establish the reliability of a confidential
informant:
               (1) by oath of the investigating officer as to the truth of the report
               containing information and his appearance before the disciplinary
               committee; (2) corroborating testimony; (3) a statement on the
               record by the chairman of the disciplinary committee that he had
               firsthand knowledge of the sources of information and considered
               them reliable on the basis of their past record of reliability; or (4)
               in camera review of material documenting the investigator’s
               assessment of the credibility of the confidential informant.

Id. at 243-44. We upheld summary judgment in favor of plaintiff in Herring because: (1) the
disciplinary report was based “solely” on the summaries of confidential informant statements
contained in unsworn reports, id. at 241; (2) the multiple confidential informant statements in
unsworn reports could not corroborate each other, id. at 243; (3) the investigating officer’s
statement did not indicate that he considered the confidential informants to be reliable, id. at 244;
and (4) the hearing officer made no finding as to the reliability of the statements, id at 247.
Because the Department’s entire case was based on the statements of the confidential informants,
there was “no evidence” to support a disciplinary violation absent “an independent finding of
confidential informant reliability.” Id. at 248.

        This case is very different. Here, the disciplinary report did not depend solely on
confidential informant statements. In addition to statements by two confidential informants, the
record contained a sworn statement from the investigating officer detailing the evidence against
plaintiff. That evidence included a statement from an officer who had observed plaintiff and the
injured inmate in the back of the prison kitchen talking together at 10:00 a.m. and again at 10:10
a.m. before the latter inmate emerged five minutes later from the back of the kitchen and told the
officer that he needed to be treated for a nose bleed. Plaintiff himself acknowledged that he and
the injured inmate had been working together during the time period reported by the officer. The
hearing officer also reviewed the statements of two confidential informants presented in the
investigating officer’s sworn affidavit. Both statements indicated that the two inmates had been
involved in a verbal confrontation in the same area two days earlier. Plaintiff himself
acknowledged that the two had exchanged words at that time, although he claimed that there had
been no dispute. A report by an officer who observed the injured inmate shortly after the
incident stated that another identified inmate told him that plaintiff had punched the injured
inmate three times in the face. That inmate later provided a written statement indicating that he
had heard only rumors on the yard that plaintiff had punched the injured inmate.

        Even excluding the confidential informant statements and assuming that there were no
eyewitnesses to the fight itself, the evidence was more than sufficient to satisfy the “extremely
tolerant” standard for upholding prison disciplinary violations. Sira v. Morton, 380 F.3d 57, 69
(2d Cir. 2004). “On judicial review of the sufficiency of evidence at a prison disciplinary
hearing, the hearing officer’s final determination must be upheld if it is supported by ‘some
evidence’ in the record.” Herring, 173 Vt. at 243. “To determine whether the ‘some evidence’
standard is met, the relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board.” Id. (quotations omitted). This
standard is satisfied here by evidence that, within a very brief time frame, the injured inmate
emerged from a conversation with plaintiff with injuries requiring that he be taken to the
hospital.

        Finally, we find unavailing plaintiff’s claim that he was entitled to have either the
testimony or a written statement of the injured inmate admitted into evidence. “The due process
protections afforded a prison inmate do not equate to the full panoply of rights due to a defendant
                                                 2
in a criminal prosecution.” Sira, 380 F.3d at 69 (quotations omitted). “Notably, there is no right
to counsel or to confrontation at prison disciplinary hearings.” Id. Given the potential for
intimidation of witnesses in a prison setting and the particular circumstances of this case, the
hearing officer did not abuse his discretion in refusing to admit the injured inmate’s testimony or
statement.

       Affirmed.




                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice




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