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In re Bianchi

December 30, 1996

IN RE THE MATTER OF THE PERSONAL RESTRAINT PETITION OF: KENNETH BIANCHI, PETITIONER.


Date first document (petition, etc) was filed in Court of Appeals: 05/12/95.

PER CURIAM. Petitioner Kenneth Bianchi seeks relief from sanctions imposed following two prison disciplinary hearings. The State agrees to dismiss the infraction report dated March 19, 1994 leading to a March 23, 1994 disciplinary hearing. At that hearing, petitioner was found guilty of possessing a weapon and sanctioned. The State agrees to correct petitioner's record and to address the adverse consequences of that hearing including notifying the State of California.

With respect to petitioner's second disciplinary hearing, he argues, among other things, that his due process rights were violated because the hearing officer relied upon an ex parte telephone conversation to find him guilty. We agree and remand for a new hearing.

FACTS

On March 15, 1994, Officers Gudzinski and Johnson were conducting their nightly head count. According to petitioner, he saw two unfamiliar officers walk by. Petitioner claims that Officer Gudzinski brought the two other officers to his cell and that they began harassing him because of his notoriety. After he failed to respond, they left. The next day, petitioner complained in writing to his custodial unit supervisor, Walter Ponti. CUS Ponti spoke with Officer Grudzinski who denied harassing petitioner. Officer Grudzinski then filed an infraction report alleging petitioner was lying.

The next day, a confidential informant told Officer Grudzinski that petitioner had attempted to pressure other inmates to testify falsely about what happened. Officer Grudzinski states that another informant told him that petitioner was extremely angry with Grudzinski and wanted to "get him". Based on this threat, petitioner was placed in administrative segregation.

On March 18, 1994, petitioner was served with notice that he was being charged with violating WAC 137-28-030 sections 203 (lying to staff), 552 (lying to staff with intent to harm an innocent person), and 701 (commission of a general infraction likely to result in a risk to the orderly operation of the institution).

Lt. Pease presided at the disciplinary hearing. At the end of the hearing, Lt. Pease told petitioner, "I'm going to postpone the sanction on this and will give it to you after I've had a chance to contact CUS Ponti on this." After speaking to CUS Ponti on the telephone outside of petitioner's presence and off the record, Lt. Pease came back to the hearing and found petitioner guilty of violating WAC 137-28-030 sections 203 and 701. He was found not guilty of violating section 552.

The infraction report reflects that the decision was based, in part, on "statement from CUS Ponti in phone conversation between myself/CUS." Petitioner was given five days of isolation and five days segregation. The prison superintendent denied petitioner's appeal. Petitioner has served the sanctions and has been released from administrative segregation.

DECISION

The Petition is Not Moot

The State contends that the petition is moot because petitioner has served his sanctions. But as petitioner correctly points out, the infraction record is available to California parole officials. The record shows that the California Board of Prison Terms relied on petitioner's Washington infractions to deny him parole. Because petitioner has shown prejudicial harm resulting from the infraction record, the petition is not moot.

The Hearing Officer Erred in Relying on Ex Parte Communications to

Decide Petitioner's Guilt

"Review of prison disciplinary proceedings is limited to determining whether the action taken was "so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding". In Re Reismiller, 101 Wash. 2d 291, 294, 678 P.2d 323 (1984). Here, petitioner claims that Lt. Pease's ex parte telephone communications with CUS Ponti during the hearing violated both the WAC provisions governing the conduct of a prison disciplinary hearing and his constitutional right to due ...


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