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Prisoners incarcerated in both federal and state correctional systems are subject to prison disciplinary codes of conduct through which they can be sanctioned for committing disciplinary code violations. Often these disciplinary processes are nothing more than a proverbial kangaroo court. The prisoner is charged with misconduct, issued an incident report (sometimes called a “Disciplinary Report” or informally known as a “Ticket” or a “Shot”), brought before a hearing body consisting of the reporting officer’s peers, found guilty of the alleged prison disciplinary code violation(s), and sanctioned for the alleged conduct. Sadly, this is not an exaggeration as the process truly is this simple, straightforward and unfortunate. There are no true judges and juries present, only a colleague or two of the reporting officers who make the guilty/not guilty determination.
With the understanding that almost every prisoner who is charged with disciplinary misconduct will be found guilty of the alleged disciplinary code violation, it is vital for prisoners to know what to do when such issues arise. They must know what steps to take before even being issued the incident report for the alleged disciplinary code violation and how to intelligently proceed through the various hearings and stages in the disciplinary process. This article strives to provide a crash course in what to do when faced with a prison disciplinary proceeding and how to slant the odds in the accused’s favor. The United States Supreme Court has ruled that prisoners have a Due Process Clause right to a fair tribunal of disciplinary matters, vesting them with certain rights, including the right to written notice of a hearing, the right to an impartial tribunal, the right to present evidence, and a written statement of the evidence and findings made at the hearing. Each prisoner should be aware of these rights and should exercise them whenever they are facing such misconduct allegations.
Tip One: Remain Silent When Charged With Inmate Misconduct
The most important rule of thumb when faced with a prison disciplinary proceeding is to remain silent. As with traditional law enforcement, prison guards investigating inmate misconduct are not the prisoner’s friends. They are not there to search for the truth. They are not impartial fact finders: their job is simply to gather evidence for a conviction of the alleged misconduct. The best way to handle such prison guards is to remain silent or to only point out facts which support an acquittal. Most prisoners acknowledge some amount of guilt when speaking with such prison investigators and really hurt their chances at a favorable outcome by doing so. By remaining silent, this potentially crippling problem can be sidestepped in its entirety. A mere “I wish to remain silent,” “I have nothing to say at this point in time,” or “I reserve the right to remain silent” is all that needs to be said when confronted with prison disciplinary proceedings.
The Seventh Circuit Court of Appeals has reversed a district court’s application of a “de minimis harm” standard in dismissing a Wisconsin detainee’s claim that he was sexually groped.
In April 2008, James Washington, Jr. was a pretrial detainee at a Wisconsin jail when a guard, John P. Hively, allegedly fondled his “testicles and penis through [his] clothing” during a pat down, “then while strip searching him fondled his nude testicles for two or three seconds.” Washington filed a federal lawsuit against Hively, who denied the allegations.
The district court granted Hively’s motion for summary judgment. The court correctly recognized that it could not resolve the factual disputes on summary judgment. However, even presuming “that the defendant grabbed the plaintiff’s genitals in a way that was not related to penological interests,” the district court found Hively was entitled to summary judgment because Washington “presented evidence of only de minimis injury” and had “suffered at most an assault and battery.”
Washington appealed and the Seventh Circuit reversed, finding that “the judge’s references to ‘de minimis injury’ and ‘assault and battery’ inappropriately invoked excessive force cases,” which hold “that ‘de minimis uses of force are non-actionable.’”
The Court of Appeals found that “an unwanted touching of a person’s private parts, intended to humiliate the victim or gratify the assailant’s sexual desires, can violate a prisoner’s constitutional rights whether or not the ‘force’ exerted by the assailant is significant.”