                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Miguel Delgado
                                                                                        FILED
Petitioner Below, Petitioner                                                         November 6, 2015
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs)    No. 15-0034 (Fayette County 14-C-339)                                         OF WEST VIRGINIA



David Ballard, Warden, Mount Olive Correctional Complex,
Respondent Below, Respondent

                               MEMORANDUM DECISION

        Petitioner Miguel Delgado, pro se, appeals the order of the Circuit Court of Fayette
County, entered December 30, 2014, dismissing his petition for a writ of habeas corpus in which
he alleged that prison officials retaliated against him for filing inmate grievances and monetary
claims regarding lost, destroyed, or damaged property. Respondent David Ballard, Warden, Mount
Olive Correctional Complex, by counsel Cynthia R. M. Gardener, filed a summary response, and
petitioner filed a reply.

        The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

         Petitioner is an inmate at Mount Olive Correctional Complex (“MOCC”). On December
12, 2014, petitioner filed a petition for a writ of habeas corpus alleging that MOCC officials
retaliated against him for filing inmate grievances and monetary claims in the West Virginia Court
of Claims regarding lost, destroyed, or damaged property. The circuit court identified that
petitioner’s specific claims were the following: (1) petitioner’s cell was “ransacked” during a
search by correctional officers, resulting in petitioner’s papers being “strewn all over the floor,” a
bar of soap being crushed, and a bottle of shampoo being broken and spilled; (2) two legal texts
were impermissibly confiscated; (3) another prisoner, Inmate Connor, was not disciplined for
refusing to return a portable CD player to petitioner; (4) petitioner was charged with violating
disciplinary rule 2.18, which prohibits “trading and selling” by prisoners, based on the statement
contained in a grievance that Inmate Conner refused to return his CD player; and (5) petitioner was
not provided with sufficient notice of the continued hearing on the “trading and selling” charge
when the hearing was rescheduled from August 5, 2014, to August 7, 2014.


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        In its order, entered December 30, 2014, the circuit court dismissed petitioner’s habeas
petition for a failure to state a claim on which relief can be granted, finding that petitioner’s claims
“concern routine discipline, safety, and security matters at MOCC[; thus,] it would be legally
inappropriate and unwise for the Court to substitute its judgment for that of MOCC officials.” The
circuit court explained that none of the claims “rise to the level of constitutional violations, and
[petitioner] is clearly not entitled to the relief requested[.]”

        Petitioner now appeals the circuit court’s December 30, 2014, order dismissing his habeas
petition. We apply the following standard of review in habeas cases:

               In reviewing challenges to the findings and conclusions of the circuit court
       in a habeas corpus action, we apply a three-prong standard of review. We review
       the final order and the ultimate disposition under an abuse of discretion standard;
       the underlying factual findings under a clearly erroneous standard; and questions of
       law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 418, 633 S.E.2d 771, 772 (2006). We have
previously found that, in order to state a retaliation claim against prison officials, a prisoner must
set forth his allegations “with specificity.” State ex rel. Anstey v. Davis, 203 W.Va. 538, 550, 509
S.E.2d 579, 591 (1998).

        Preliminarily, petitioner contends that the five specific claims that the circuit court
identified do not comprise the entirety of his complaint against MOCC officials. However, upon
our review of petitioner’s habeas petition (including attachments), it is difficult to distinguish: (a)
petitioner’s specific claims, (b) allegations made merely in support of the specific claims; and (c)
background information that petitioner felt necessary to include. Given that the pleading standard
established in Anstey requires specificity, we find that the circuit court did not err in addressing
only those claims that it could readily distinguish from other information provided.

       As to the five claims the circuit court identified, respondent first asserts that it is often
necessary to break bars of soap and open shampoo bottles during a search of a prisoner’s cell
because such items are often utilized to hide contraband. “We must be careful not to substitute our
judgment for that of prison administrators.” Nobles v. Duncil, 202 W.Va. 523, 534, 505 S.E.2d
442, 453 (1998); see O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). Therefore, we
determine that the circuit court did not err in rejecting this claim.

        Second, in his habeas petition, petitioner informed the circuit court that he filed Case No.
CC-14-1086 in the West Virginia Court of Claims requesting reimbursement for the confiscated
legal texts and that the case was still pending. Because petitioner is litigating the claim about the
confiscated books in another forum (that petitioner chose), we find that the circuit court did not err
in declining to adjudicate that claim.

       Next, based on the exhibits that petitioner provided the circuit court, Inmate Connor denied
having petitioner’s CD player and the player was not recovered during a search of Inmate
Connor’s cell. Thus, we determine that it was a lack of evidence—and not racial
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discrimination1—that caused Inmate Connor not to be charged with a disciplinary rule violation.
Therefore, we conclude that the circuit court did not err in rejecting this claim.

        Fourth, petitioner admitted that he gave his CD player to another inmate. Disciplinary rule
2.18 provides, in pertinent part, that “[n]o inmate shall . . . receive or offer for trade, sale, loan, gift,
or receipt any goods or services of any nature . . . with other inmates[.]” (emphasis added) While
petitioner alleges that he gave Inmate Connor the player under duress, his allegations reflect that
petitioner gave Inmate Connor the item because petitioner chose to do so based on Inmate
Connor’s alleged gang affiliation.2 Therefore, based on petitioner’s admission of guilt, we find
that some evidence existed of petitioner’s “trading and selling” in violation of disciplinary rule
2.18. See Snider v. Fox, 218 W.Va. 663, 666-67, 627 S.E.2d 353, 356-57 (2006) (standard for
upholding disciplinary conviction requires only that some evidence exists to support it). Therefore,
we find no error in the circuit court’s refusal to overturn petitioner’s disciplinary conviction.

        Fifth, we determine that petitioner’s claim that he was not provided with sufficient notice
of the continued disciplinary hearing is subject to a harmless error analysis. See Division of
Corrections Policy Directive 325.00 § I (policy directive regarding prison discipline “is intended
to serve as broad guidelines” and “shall not be construed as vesting with any inmate a liberty or
property interest greater than that, which is otherwise provided by law”). Policy Directive 325.00
provides, in pertinent part, that a disciplinary hearing may be continued for good cause, including
“unavailability of inmate or staff.” Id. §§ V-B-14(d) and (e). According to petitioner, the
disciplinary hearing on his “trading and selling” charge began on July 29, 2014, at which time both
the MOCC official making the charge and petitioner testified. After their testimony, the hearing
was continued to August 5, 2014, in order to secure the testimony of other MOCC officials.
Petitioner received notice of that continuance. However, the continued hearing did not occur on
August 5, 2014, but on August 7, 2014. On August 7, 2014, Sgt. Shawn Ramsey testified that he
did not work on August 5, 2014, and that petitioner had informed him that he was being “extorted”
by Inmate Connor. Thus, while petitioner states that he was not notified of the rescheduling from
August 5 to August 7, 2014, Sgt. Ramsey’s testimony (a) establishes good cause for continuing the
hearing to August 7, 2014; and (b) constitutes evidence favorable to petitioner’s position. Thus, we
determine that petitioner fails to show how continuing the hearing to August 7, 2014, prejudiced
his rights. We find that even assuming, arguendo, that it violated procedure not to give petitioner
notice of the hearing’s rescheduling, it was harmless error. Therefore, we conclude that the circuit
court did not err in rejecting this claim.

         More generally, petitioner alleges that MOCC officials took various actions against him to
retaliate for his filling inmate grievances and monetary claims in the Court of Claims regarding

        1
                Petitioner notes that he is Hispanic and Inmate Connor is white.
        2
               According to the grievance petitioner filed reporting the incident, Inmate Connor
demanded that petitioner give him petitioner’s CD player and petitioner did so in an effort “to keep
the peace” rather than getting into a confrontation with Inmate Connor.


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lost, destroyed, or damaged property. “Prison officials may not retaliate against an inmate because
of the inmate’s exercise of his right of access to the courts.” Anstey, 203 W.Va. at 549, 509 S.E.2d
at 590 (internal quotations and citations omitted). In Anstey, we noted that while a prisoner’s
exercise of his right to access to the courts should not be chilled, that right is not completely
unfettered because of “the acknowledged propensity” toward abuse. Id. at 547, 509 S.E.2d at 588
(internal quotations and citations omitted). We note that according to petitioner, he is actively
litigating one of the claims asserted in this case in a separate proceeding. Therefore, we cannot
conclude that any of the alleged acts by MOCC officials has chilled petitioner’s exercise of the
right to access the courts and, accordingly, do not find any abuse of discretion in MOCC officials’
decisions to take the actions they did. O’Lone, 482 U.S. at 349 (“evaluation of penological
objectives is committed to the considered judgment of prison administrators” because it is prison
administrators who have to “anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration”); see Nobles, 202 W.Va. at 534, 505 S.E.2d at 453.

        Because all of petitioner’s allegations go to “routine discipline, safety, and security matters
at MOCC,” as found by the circuit court, respondent urges us to reject petitioner’s request to
remand this case to allow petitioner to amend his petition. We find that petitioner has had his
opportunity to assert claims relating to these matters that rise to the level of constitutional
violations, and petitioner has not done so. We refuse to remand this case so that petitioner can
amend his petition.

        For the foregoing reasons, we affirm the circuit court’s dismissal of petitioner’s habeas
petition.

                                                                                       Affirmed.

ISSUED: November 6, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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