ON REVIEW FROM COURT OF APPEALS CASE NO. 2010-CA-001026-MR LYON CIRCUIT COURT NO. 09-CI-00186
COUNSEL FOR APPELLANTS: Stafford Easterling Justice and Public Safety Cabinet.
COUNSEL FOR APPELLEE: Melinda Brooke Buchanan Assistant Public Advocate.
Appellee, Ontario Thomas, is currently in the custody of the Kentucky Department of Corrections. On April 17, 2009, while serving time at Northpoint Training Center, Thomas allegedly assaulted another inmate by the name of Jeffery Elam. Correctional Lieutenant Walter Gribbins investigated the matter. Based on the information Lieutenant Gribbins received from at least two confidential informants, he concluded that Thomas hit Elam in the eye after Elam refused to pay Thomas "yard tax." As a result of his investigation, Lieutenant Gribbins submitted a disciplinary report against Thomas for violating Kentucky Corrections Policy and Procedure ("CPP") Category VII, Item 2, "physical action resulting in death or injury of an inmate." Thomas maintained his innocence. On June 2, 2009, the Adjustment Committee held a hearing, during which no witnesses were called. The Adjustment Committee determined that Thomas was guilty of the infraction. Thomas was sentenced to 180 days of disciplinary segregation, loss of two years of non-restorable good time credit, and payment of restitution in the amount of $1, 500 for medical expenses. Thomas appealed the Adjustment Committee's decision, arguing that its final disposition failed to declare that the confidential informants were reliable.
On December 16, 2009, Thomas also filed a Petition for Declaration of Rights in the Lyon Circuit Court. Thomas' petition argued that the Adjustment Committee's reliance on information obtained from the confidential informants violated his constitutional rights of due process under the Fourteenth Amendment of the U.S. Constitution and Section 2 of the Kentucky Constitution.
Shortly after Thomas filed his petition in the circuit court, Warden Steve Haney granted Thomas' internal appeal, ordering a rehearing and vacating the original disciplinary report. The Adjustment Committee reheard Thomas' case on January 26, 2010. The Adjustment Committee's report stated the following: "We find [inmate] Thomas guilty based on the confidential information received from Lieutenant Gribbins. The Committee review[ed] the confidential information and believe it to be true and reliable according to policy." Appellant once again appealed the Adjustment Committee's determination and requested that the Adjustment Committee investigator interview two alleged witnesses. Both witnesses, neither of which testified before the Adjustment Committee, told the investigator that they were uncertain of who assaulted Elam. On February 23, 2010, a final Adjustment Committee hearing was held. Once again, the Adjustment Committee stated that Thomas was guilty of the infraction "based on the confidential information received from Lieutenant Gribbins, [which] the Committee . . . believed  to be true in accordance to policy." The Adjustment Committee re-sentenced Thomas to the same punishment as it did in its original sentence.
By the time the Lyon Circuit Court ruled on Thomas' petition, his disciplinary report had been vacated, re-investigated, and reheard. Therefore, Thomas had already obtained the relief sought in his petition. However, the trial court, in anticipating a subsequent petition on the same grounds, stated that in the "spirit of judicial efficiency and economy, " it would address Thomas' due process arguments. The trial court ultimately dismissed Thomas' petition, stating that the Adjustment Committee complied with the requirements of procedural due process as outlined in Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). Furthermore, the trial court held that since the Adjustment Committee complied with the CPP as it pertains to confidential informants, Thomas' due process rights were not infringed upon.
Thomas appealed the Lyon Circuit Court's order dismissing his petition. The Court of Appeals reversed on the grounds that there was insufficient evidence of the disciplinary charge against Thomas to pass the "some evidence" standard pronounced in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985). The Court of Appeals specifically took aim at the difficulty in conducting a meaningful review of the Adjustment Committee's findings regarding the reliability of the confidential informants. Relying heavily on Hensley v. Wilson, 850 F.2d 269 (6th Cir. 1988), the Court of Appeals stated that in order "to determine whether the confidential informant qualifies as 'some evidence' the reviewing court must be able to look into the reliability of the informant and the information the informant provides." Since the record was devoid of information or any explanation to support the Adjustment Committee's determination that the informants and their information were reliable, the Court of Appeals found that Thomas' due process rights had been violated. Accordingly, the Court of Appeals reversed and remanded the case back to the trial court with instructions to order a new Adjustment Committee hearing consistent with its opinion. We granted discretionary review.
Prison disciplinary proceedings, such as the Adjustment Committee hearing in the case before us, are not criminal prosecutions. Wolff, 418 U.S. at 556. Rather, these proceedings are considered administrative proceedings. Consequently, prisoners subject to disciplinary proceedings do not enjoy the full panoply of due process protections. Id. Prisoners do, however, retain a minimal right to due process subject to the many limitations inherent in the penal system. Id. In order to comply with the minimum requirements of procedural due process, an inmate cannot be deprived of a protected liberty interest unless he receives: "(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Walpole, 472 U.S. at 454 (citing Wolff, 418 U.S. at 563-67). Additionally, due process requires that there be "some evidence" in the record to support the disciplinary board's decision. Walpole, Id . This standard merely requires some basis in the record in which the reviewing court can deduce the reasons for the disciplinary board's finding. Id. at 457. "Ascertaining whether this standard is satisfied does not require [a reviewing court's] examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id. at 455-56.
Notwithstanding this easily satisfied evidence threshold, such a determination becomes difficult in situations, as is before us, where the supporting evidence is based entirely on confidential information which is neither supplied to the reviewing court, nor discussed in the Adjustment Committee's report or findings. This comes disturbingly close to the inmate being adjudged guilty simply because the investigating officer says he or she is guilty. When the Adjustment Committee believes the informant's information is reliable without giving any reasons for its faith in that evidence, we are faced with rubber stamping an arbitrary determination.
For this reason, when confidential information is the basis for a prison disciplinary proceeding, the majority of federal circuits require the disciplinary board to provide in the record evidence of the reliability of the information provided by the confidential informant. See, e.g., Henderson v. Carlson, 812 F.2d 874, 879 (3d Cir. 1987); Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir. 1985); Freitas v. Auger, 837 F.2d 806, 810 (8th Cir. 1988); Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987); Taylor v. Wallace, 931 F.2d 698, 702 (10th Cir. 1991). However, it is vital that the disciplinary board not divulge too much information, for we acknowledge the sensitive nature of confidential informants within the prison setting and the need to protect them from retaliation. Undeniably, "[retaliation is much more than a theoretical possibility; and the basic and unavoidable task of providing reasonable personal safety for guards and inmates may be at stake . . . ." Wolff, 418 U.S. at 562. That is why "[p]rison administrators [are] accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979).
Our ultimate inquiry, therefore, is what amount of particularized findings must the Adjustment Committee make in order for the "some evidence" standard to be met while also protecting the safety and security of inmates who become witnesses?
The Sixth Circuit, for example, has held that to pass constitutional muster, the Adjustment Committee must have "some evidentiary basis ... upon which to determine for itself that the informant's story is probably credible." Hensley, 850 F.2d at 277 (emphasis in original). The Sixth Circuit explained that if the Adjustment Committee simply accepted the investigating officer's conclusion as true, it would be "merely recording the findings made by the ...