RANDY WHITE, BILLY HERRIN AND D. ELLIS, APPELLANTS
CLIFTON BOARDS-BEY, APPELLEE
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-000818-MR. MUHLENBERG CIRCUIT COURT NO. 10-CI-00699.
COUNSEL FOR APPELLANTS: Allison Rene Brown, Department of Corrections, Office of Legal Services.
COUNSEL FOR APPELLEE: Margaret Anne Ivie, Assistant Public Advocate, Department of Public Advocacy.
Appellee, Clifton Boards-Bey, is currently in the custody of the Kentucky Department of Corrections (" DOC" ). While serving time at Northpoint Training Center (" NTC" ), Boards-Bey was allegedly involved in a riot which ensued on August 21, 2009. Correctional Officer Stefany R. Thornberry investigated the riot. Officer Thornberry interviewed officers who, after witnessing the melee, could verify specific inmates who had violated the Kentucky Department of Corrections Policy and Procedures (" CPP" ) during the riot.
Correctional Lieutenant J. Phillips notified Officer Thornberry of an incident that occurred during the riot involving Boards-Bey. In particular, Lieutenant Phillips stated that, while the entire prison was on " lock-down status," Boards-Bey was outside of Dorm 1 with a group of inmates, yelling and throwing objects at NTC employees.
Lieutenant Phillips also stated that Boards-Bey chased him from Dorm 1 to the prison kitchen. Based entirely on Lieutenant Phillips' interview, Officer Thornberry completed a disciplinary " write-up" of Boards-Bey.
Subsequently, Boards-Bey was transferred to the Green River Correctional Complex (" GRCC" ). Sergeant Darime Ellis took over Officer Thornberry's investigation and interviewed Boards-Bey. During the interview, Boards-Bey maintained his innocence and stated that Lieutenant Phillips had fabricated the entire incident. Additionally, Boards-Bey requested that three witnesses be questioned. He claimed that these three witnesses would corroborate his version of events. The first two witnesses were NTC inmates and were present with Boards-Bey when the riot occurred. Boards-Bey also listed Lieutenant Phillips as a witness, claiming that he would recant his former statements and testify that Boards-Bey was innocent. Sergeant Ellis, however, failed to interview the three witnesses. Ultimately, Sergeant Ellis submitted a disciplinary report against Boards-Bey for violating Kentucky Department of Corrections Policies and Procedures (CPP) 15.2, Category VII, Item 4, " Physical Action Resulting in the Death or Injury of an Employee or Non-Inmate."
On October 25, 2009, Boards-Bey received notice of the charges. On October 28, 2009, a disciplinary hearing was conducted by a single Adjustment Committee Officer (" ACO" ), Lieutenant Billy Herrin. Boards-Bey was represented by inmate " Legal Aide/Staff Counsel." During the hearing, Boards-Bey failed to call any witnesses or present evidence. The Hearing Disciplinary Report Form summarizes the hearing as follows:
Witnesses: Lt. Phillips, Inmate Anderson, Inmate Powell-waived by Inmate Boards in the hearing due to Inmate Boards stating that he did not want to talk in the hearing and he wanted an attorney.
Findings: Inmate Boards was present with Legal Aide Donald Violett. Inmate pled NOT GUILTY in the hearing. Inmate Boards was read his Miranda Rights [ Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] in the hearing and Inmate Boards stated that he did not want to speak to me. I find that Inmate Boards did commit the offense. . . based on the report from CTO Thornberry . . . that Inmate Boards was throwing items at NTC staff in front of dorm one and was chasing Lt. Phillips from dorm one to the kitchen . . . .
Boards-Bey was sentenced to 365 days of disciplinary segregation and loss of 199 days of non-restorable good time credit. He was also ordered to pay restitution for medical costs and any other costs resulting from this violation. Boards-Bey appealed the ACO's decision to the Warden of the GRCC, Randy White. In his appeal, Boards-Bey stated the following:
I wanted a real lawyer present. I was not aware that by me asking for a lawyer to be present he could go ahead and find me guilty. I thought that he had to wait intill [sic] my lawyer got there.
Boards-Bey's appeal also stated that, at the time of the riot, he was on crutches due to an ankle injury and therefore could not have physically chased Lieutenant Phillips. On November 25, 2009, Warden White amended the charge to a violation of CPP 15.2, Category VII, Item 1, " Physical Action Against an Employee or Non-Inmate." As a result, the Warden reduced ...