Carter v. Pallito, No. 494-8-13 Wncv (Teachout, J., January 8, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 494-8-13 Wncv

Bernard Carter
      Plaintiff

           v.

Andrew Pallito, Commissioner,
Vermont Department of Corrections
     Defendant

                                                      DECISION
                                          Cross-Motions for Summary Judgment

        Inmate Bernard Carter was convicted of a Major A4 (sexual assault) disciplinary
violation. On Rule 75 review, he argues that the evidence in the administrative record on which
his conviction is based lacks sufficient reliability to satisfy the “some evidence” standard and,
hence, his due process rights.

           The disciplinary proceeding

        The record before the hearing officer consisted of several reports written by correctional
officers and the testimony of Mr. Carter, who denied any sexual assault. According to the
reports, an inmate alerted officers that another inmate, Stephen Messier, may have been sexually
assaulted by Mr. Carter when Mr. Messier and Mr. Carter were cellmates. When asked about the
allegation, Mr. Messier described having been anally raped by Mr. Carter, ostensibly while
heavily medicated and unaware, and reported heavy bleeding as a result. Mr. Messier was
examined by medical personnel, who diagnosed rectal bleeding but did not find injuries or other
evidence suggestive of rape. This aspect of the medical examination was redacted from the
report in the administrative record with a handwritten note: “Medical information – See SOS for
unredacted if needed.” It also became clear that Mr. Messier’s medication was insufficient to
cause him to be unaware of such a significant event.

        Confronted with the unlikeliness of his story, Mr. Messier admitted that it was untrue.
He said instead that Mr. Carter had repeatedly requested oral sex and that, while he initially
refused such overtures, he eventually felt compelled to assent due to Mr. Carter’s threats of
violence. Mr. Messier described aspects of the encounters in detail (characterized by the hearing
officer as “vivid”).

       Mr. Carter was the only witness at the hearing. Based on the reports, the hearing officer
found Mr. Carter guilty; he was placed in administrative segregation. On appeal, the conviction
was affirmed.
       Events following the conviction

        Subsequently, a hearing was held to determine whether administrative segregation was
warranted. A different hearing officer found that Mr. Messier had a motive to lie and lacked
credibility and that administrative segregation for Mr. Carter was not warranted. Thereafter, the
superintendent ordered a new hearing, at which administrative segregation was found to be
warranted.

       Analysis

        In a nutshell, Mr. Carter argues that Mr. Messier got caught in a lie (that he had been
anally raped) and made up an alternative lie (the compelled oral sex) to avoid discipline for
lying. He argues that the record does not include indicia of reliability that should be present in
cases including confidential witnesses and that the hearing officer’s findings at the first
administrative segregation hearing—the hearing after the conviction—bolster his position that
the record upon which he was convicted lacks “some evidence.”

        It is not the function of this court to revisit the determinations made by the initial hearing
officer about the credibility of different pieces of evidence. The purpose of determining—on
judicial review—that “some evidence” of guilt is in the administrative record is to ensure that the
conviction is not arbitrary, “without threatening institutional interests or imposing undue
administrative burdens.” Superintendent, Massachusetts Correctional Institution v. Hill, 472
U.S. 445, 455 (1985). “The fundamental fairness guaranteed by the Due Process Clause does not
require courts to set aside decisions of prison administrators that have some basis in fact.” Id. at
456, quoted in Lafaso v. Patrissi, 161 Vt. 46, 49–50 (1993). In this case, the corrections officers’
reports document that they investigated the original allegation, challenged Mr. Messier’s version
of events when other evidence failed to corroborate it, questioned him extensively, and
eventually got what they thought was the real story (the series of oral sex encounters). That
evidence persuaded the hearing officer. Statements in reports alone can be sufficient to satisfy
the “some evidence” standard. See McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999);
Rudd v. Sargent, 866 F.2d 260, 262 (8th Cir. 1989). The administrative record does not lack
“some evidence” of guilt. It was the role of the hearing officer to evaluate the credibility of the
evidence, including the reports, and decide the facts. There is “some evidence” to support the
decision.

        Mr. Carter argues that credibility standards related to confidential witnesses apply here,
but there were no confidential witnesses in this case so such an argument does not apply. The
court also rejects Mr. Carter’s argument that the findings of the hearing officer at the
administrative segregation hearing should have an impact on the record at the disciplinary
hearing. That a different hearing officer might have arrived at a different conclusion after
consideration of the same evidence presented at a disciplinary hearing does not show that the
record of the hearing lacks “some evidence.” The hearing officer at the disciplinary hearing had
before him sufficient evidence to meet the “some evidence” standard applicable to judicial
review.




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                                          ORDER

      For the foregoing reasons: Mr. Carter’s motion for summary judgment is denied and the
Department of Corrections’ motion is granted.

       Dated at Montpelier, Vermont this ____ day of January 2015.


                                                  _____________________________
                                                  Mary Miles Teachout,
                                                  Superior Judge




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