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In re Alvarez

May 15, 1997

IN THE MATTER OF THE APPLICATION FOR RELIEF FROM PERSONAL RESTRAINT OF JOSE ALVAREZ, PETITIONER.


Appeal from Superior Court of Grant County. Docket No: 95-1-00432-9. Date filed: 12/06/95.

PER CURIAM Jose Alvarez seeks relief from personal restraint imposed following findings of guilt entered in a prison disciplinary hearing on infractions for starting a fire, throwing things at officers, threatening officers, and flooding cells. Mr. Alvarez was sanctioned with 120 days loss of good time. *fn1 He allegedly participated in the charged acts with other inmates housed on his tier. The acts were part of an incident occurring in the early morning hours of December 16, 1996, in which two fires were set and corrections officers had things thrown at them when they went to put out the fires.

Mr. Alvarez contends the evidence presented at the hearing was insufficient to find him guilty of the charges. In prison disciplinary hearings, due process requires the Department of Corrections to show some evidence of the inmate's guilt. In re Personal Restraint of Johnston, 109 Wash. 2d 493, 497, 745 P.2d 864 (1987). Here, the incident report and interdepartmental memoranda state that fires were set on C tier on two different occasions that night one in front of cell 9, and the other in front of cells 19 and 20. Sergeant Herriot was one of the corrections officers who extinguished the fires. He said that after the first fire, inmates started passing down toilet paper and paper bags to cell 20 to start another fire. According to Sergeant Herriot, all of the inmates were involved in this latter conduct. He witnessed inmates passing a roll of toilet paper from cell 1 to the other end of the tier. Another corrections officer said that the inmates discussed starting the second fire further down the tier so they would have a longer time to throw feces and urine on the officers as they went to extinguish it.

Mr. Alvarez argues the foregoing is insufficient to link him to the fires. He says cell 16 was empty at the time of the alleged passing of toilet paper from hand to hand. Also, he points out that nowhere in these documents does it mention him as a participant, or mention his cell (cell 18) as involved in the alleged incident. Mr. Alvarez states he was asleep the entire time.

The Department relies upon Sergeant Herriot's statement that he watched a roll of toilet paper being passed down the tier. But the Department's response also admits Sergeant Herriot said it is possible to toss a roll of paper or slide it along the floor. Department's Br. at 3. Sergeant Herriot was only able to say that "for the most part" the paper was passed from cell to cell at waist or shoulder height. Department's Br. at 3.

The foregoing does not constitute evidence Mr. Alvarez aided or abetted the setting of the fires. *fn2 If the inmate in cell 15 could have rolled the toilet paper past empty cell 16, then the inmate in cell 17 could have rolled the paper past Mr. Alvarez in cell 18. Sergeant Herriot was unable to say all the inmates in the adjoining cells passed the paper from hand to hand. Rather, he stated that "for the most part" the paper stayed waist or shoulder height.

The personal restraint petition is granted. The findings of the hearing officer entered at the disciplinary hearing are reversed, and the Department is ordered to credit Mr. Alvarez with the 120 days lost good time.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for ...


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