                                                                                            COURTFILED



                                                                                                         OF APPEALS
                                                                                                      DIVISION 7I
                                                                                          2015 APR 21
                                                                                                           M 9: 06
                                                                                          S T AT ..        a   ra r.
                                                                                                                       1
                                                                                          BY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

    In re the Matter of                                                       No. 46864 -641
    Personal Restraint Petition of


    JOSEPH KOPPENSTEIN,


                                       Petitioner.
                                                                        UNPUBLISHED OPINION




           JOHANSON, C. J. —           Joseph Koppenstein seeks relief from personal restraint imposed


following a prison disciplinary proceeding in which a hearing officer found him guilty of violating

WAC 137 -25 -030 ( Category C – Level 1, infraction 610) ( unauthorized             possession of a prescribed




medication greater than a single daily dose). 1 He claims that the evidence does not support this

infraction and asks that it be expunged.


           We review prison disciplinary proceedings to determine whether the Department of

Correction' s ( DOC)         action was so arbitrary and capricious as to deny the petitioner a

                     fair proceeding. In           Reismiller, 101 Wn.2d 291, 294, 678 P. 2d 323 ( 1984).        In
fundamentally                                 re




1
    The   hearing   officer also   found   petitionerguilty of violating WAC 137 -28- 220( 1) ( infraction 328)
and     WAC 137 -25 -030 (         Category   B–    Level 2, infraction 556). He does not challenge these
infractions.
No. 46864 -6 -II



doing so, we look to whether petitioner received the due process protections afforded him under

Wolff v.   McDonnell, 418 U.S. 539, 563 -65, 94 S. Ct. 2963, 41 L. Ed. 2d 935 ( 1974).                              These


protections     include: ( 1)     advance written notice of           the   charged violations, (    2) the opportunity to

present documentary evidence and call witnesses when not unduly hazardous to institutional safety

and correctional goals, and ( 3) a written statement of the evidence relied on and the reasons for the


disciplinary action.

         Petitioner challenges only the third of these protections, claiming no evidence supported

the infraction. We affirm a department' s decision as long as there is any evidence in the record to

support it. Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.

Ct. 2768, 86 L. Ed. 2d 356 ( 1985);             In re Pers. Restraint ofJohnston, 109 Wn.2d 493, 497, 745

P. 2d 864 ( 1987).      Here, the DOC contends that the evidence supporting the infraction consisted of

the reporting officer' s report in which the officer stated that petitioner did not have a valid

prescription for the three dicyclomine hydrochloride pills found in petitioner' s shirt pocket.


Petitioner argues that this is not true, that he had a valid prescription, that a daily dose is four pills,

and    that Nurse Sheridan Roberts           stated   in his   report, "    The Offender does have a prescription for

this   medication."      Resp. Ex. 2, Attach. C.

          This court' s role is not to reweigh the evidence but rather to determine if some evidence in


the record supports the hearing officer' s decision. The only evidence supporting the infraction is

the reporting     officer' s statement      that   petitioner   did   not   have   a valid prescription.   But nothing in

the record explains the reporting officer' s basis of knowledge, especially in that he asked the nurse

to   identify   the   pills and   the   nurse reported   that   petitioner    had   a prescription   for the drugs. While


the evidentiary standard is highly deferential to the disciplinary process, a verifiable fact should


                                                                 2
No. 46864 -6 -II



not   be disregarded for    a conjectural statement.           Certainly, this is not what our Supreme Court

intended    when    it defined the evidentiary     standard    that   would    satisfy due   process.   Hill, 472 U.S.


at 457. See Reismiller, 101 Wn.2d at 296 ( insufficient evidence because there was no reasonable

connection     between the inmate       and   the evidence);   see In re Hews, 99 Wn.2d 80, 88, 660 P. 2d 263


 1983) (   if petitioner makes prima facie showing of actual prejudice but the record is insufficient
                                                                                                   2
to determine the     merits of   his   claims, court should remand       for   a new   hearing).

           Accordingly, we grant this petition. The DOC may expunge petitioner' s infraction or grant

petitioner a new hearing. If it holds a new hearing, the hearing officer should consider the available

evidence to decide if in fact petitioner had a valid prescription and what constitutes a daily dose in

deciding    whether petitioner violated        WAC 137 -25 -030 ( Category C — Level 1, infraction 610).


           A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,

it is so ordered.




 We concur:




2 We disagree with the DOC that any error was harmless simply because the sanction was imposed
concurrently with his other infractions. There are more consequences than loss of good time. DOC
Policy 320. 150.
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