August 13, 2013
Arlyn P. Ildefonso, appellant,
Nebraska Department of Correctional Services, appellee,
NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Johnson County: Daniel E. Bryan, Jr., Judge.
Arlyn P. Ildefonso, pro se.
Jon Bruning, Attorney General, and Linda L. Willard for appellee.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
This case involves an alleged procedural error in an inmate's appeal of disciplinary measures taken against him. In particular, he argues that the district court for Johnson County should have reversed the decision of the Nebraska Department of Correctional Services (DCS) Appeals Board, because it did not have before it all of the evidence that was presented at the initial disciplinary hearing. We disagree and affirm the ruling of the district court.
Arlyn P. Ildefonso is an inmate at the Tecumseh State Correctional Institution. In February 2012, a Corporal Tinkler performed a search of Ildefonso's cell and discovered several items. These items consisted of a piece of paper with two inmate monikers listed under the words "Running Times, " a piece of "paper with 1s and 5s" written in various patterns, a green folder containing phrases, a confidential interview between detectives and another inmate, and legal work for other inmates. Corporal Tinkler wrote a misconduct report charging Ildefonso with engaging in gang/security threat activity, possessing or receiving unauthorized articles, and three other violations.
As a result of the misconduct report, Ildefonso had a hearing before the investigative officer, followed by a hearing before the Tecumseh State Institution Disciplinary Committee (IDC). At the IDC hearing, the chairman of the board showed Ildefonso and his representative the evidence collected from Ildefonso's cell while reading the other documents into the record. The two documents read into the record were an IDC action sheet report from a Corporal Sejkora and a memorandum from a Sergeant Serna. Sergeant Serna's memorandum described and interpreted the evidence removed from Ildefonso's cell, including several sheets of sentences and vocabulary identified as "sign language practice sentences." According to Sergeant Serna's interpretation, several of the sign language phrases were code for security threat group purposes and were gang related. After reading those documents, the chairman said he had "all together, 74 pages of evidence and copies of the evidence tags." He advised Ildefonso "this is copies of all the paperwork that is in the record that you've already viewed, " referring to the material confiscated from Ildefonso's cell. The remaining evidence read into the record included another IDC action sheet, an incident report from Corporal Sejkora, and an incident report from Corporal Tinkler.
In response to the charges, Ildefonso submitted a letter from his mother, copies of his prison store account, and copies of grievances and interview requests he had filed. He explained that he had not been involved in gang activity, but was learning American Sign Language. The IDC found him guilty of "[g]ang/security threat group activity" and "possessing or receiving unauthorized articles" and dismissed the other charges. The IDC imposed sanctions that included periods of administrative segregation and room restriction.
Ildefonso appealed the IDC's decision to the DCS Appeals Board (hereinafter Appeals Board). In his appeal, Ildefonso argued that the evidence presented against him did not support the charges and that he was denied due process of law. The Appeals Board affirmed the IDC's decision.
Ildefonso appealed the Appeals Board decision to the district court for Johnson County, alleging again that the evidence presented did not support the charges and that he was denied due process. He also filed a "praecipe for production of documents, " requesting a "verbatim transcript" of the disciplinary hearing and appeal hearing, a copy of any documents that the DCS had in its possession relating to the incident, all notes or minutes from the IDC hearing or Appeals Board hearing, and all other documents that were presented to the IDC or Appeals Board relating to this incident.
Upon receipt of a copy of the transcript and bill of exceptions, Ildefonso discovered that not all of the evidence offered at the disciplinary hearing was included in his appeal to the Appeals Board. Specifically, "36 pages of handwritten notes" were missing. As a result, when the Appeals Board made its ruling, it had before it 33 pages of another inmate's legal work, a confidential interview between detectives and another inmate, the "paper with 1s and 5s, " evidence cards, and the evidence read into the record which included the IDC action sheet report from Corporal Sejkora and the memorandum from Sergeant Serna describing and interpreting the sheet containing sign language and phrases that Corporal Tinkler discovered in Ildefonso's cell.
After receiving the transcript and bill of exceptions, Ildefonso filed a motion to compel, asserting that the transcript was incomplete because it did not provide all of the documents he requested. In particular, Ildefonso noted that the transcript did not include all of the evidence found in his cell and used to convict him at the IDC hearing. The trial court denied Ildefonso's motion to compel, finding that the documents Ildefonso requested were never offered into evidence at the IDC hearing. The district court affirmed the ruling of the Appeals Board. Ildefonso timely appealed.
ASSIGNMENTS OF ERROR
Ildefonso argues, condensed and restated, that the trial court abused its discretion by overruling his motion to compel, finding the "36 pages of handwritten notes" were not introduced into the record during the IDC hearing, and failing to reverse the decision of the Appeals Board.
STANDARD OF REVIEW
An aggrieved party may obtain review of any judgment or final order entered by a district court under the Administrative Procedure Act. See Neb. Rev. Stat. § 84-918 (Reissue 2008). A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Lessley v. Nebraska Dept. of Corr. Servs., 15 Neb.App. 955, 739 N.W.2d 470 (2007). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. An appellate court, in reviewing a district court judgment for errors appearing on the record, will not substitute its findings for those of the district court where competent evidence supports those findings. Id. Whether a decision conforms to law is, by definition, a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court. Id.
Denial of Ildefonso's Motion to Compel.
Ildefonso argues that the district court erred in denying his motion to compel because the missing documents were not included in the record forwarded to the Appeals Board. Idelfonso does not argue that the missing documents were exculpatory and does not assert how he was prejudiced by the alleged failure to include the missing documents. Because we find that the evidence in the record was sufficient to convict Idelfonso of the charged violations as set forth more fully below, we need not address this assigned error.
Finding Record to Be Complete.
Ildefonso argues that the district court erred in concluding that certain documents were not introduced as evidence at the agency hearing and were therefore not necessary as part of the record. We agree that the district court erred in determining that the requested documents were not offered at the IDC hearing; however, we disagree that the omitted evidence was necessary to affirm a finding of Ildefonso's guilt.
The bill of exceptions from the IDC hearing does not clearly identify the evidence that was offered and received. The IDC chairman, however, noted that there were 74 pages of evidence and evidence tags. One of the evidence tags, which was made a part of the record, refers to the pages with sign language and phrases. The electronic summary of the hearing also lists "36 pages of handwritten notes" as evidence relied upon in finding Ildefonso guilty. Although nothing in the bill of exceptions specifically mentions admitting the 36 pages of handwritten notes into evidence, these other documents indicate that the IDC considered the 36 pages of handwritten notes, which either included or consisted of papers containing the sign language words and phrases. The record sent to the district court, however, did not include the 36 pages of handwritten notes or the sign language words and phrases.
Neb. Rev. Stat. § 84-917(4) (Cum. Supp. 2012) requires an agency, if petitioned, to transmit to the court a certified copy of the official record of the proceedings had before the agency. Such official record shall include: (a) Notice of all proceedings; (b) any pleadings, motions, requests, preliminary or intermediate ruling and orders, and similar correspondence to or from the agency pertaining to the contested case; (c) the transcribed record of the hearing before the agency, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the agency during the proceeding, and all proffers of proof and objections and rulings thereon; and (d) the final order appealed from.
Since the referenced documents were introduced as evidence at the IDC hearing, they should have been included in the record on appeal. Therefore, we agree with Ildefonso that the district court erred when it concluded that the referenced documents were not introduced into evidence or required to be included in the record on appeal. As set forth below, however, the failure to include the referenced documents does not require a reversal of the district court's order.
Failure to Reverse Agency Decision.
Ildefonso argues that the district court erred in failing to reverse the Appeals Board decision. Because sufficient evidence supported the decision, we disagree.
When a district court conducts a review of an agency proceeding, it is required to make independent factual findings. See JCB Enters. v. Nebraska Liq. Cont. Comm., 275 Neb. 797, 749 N.W.2d 873 (2008). The district court concluded that the record before it contained sufficient evidence to affirm the Appeals Board decision. On appellate review of the district court's decision, an appellate court inquires as to whether the decision conforms to law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997). Our review of the record indicates that the district court's decision was supported by the law and competent evidence and was neither arbitrary, capricious, nor unreasonable.
Ildefonso does not argue that the DCS did not have the authority to punish him for violating rules or that gang/threat activity is a type of activity that cannot be punished. The evidence in the record is sufficient to conclude that Ildefonso was engaged in gang/threat activity. In addition to misconduct reports from prison officials, the record contained an expert report interpreting evidence that was collected from Ildefonso's cell. The report explains that the materials found in Ildefonso's cell detailed a method to secretly communicate with other gang members through the use of sign language. Accordingly, the district court's order affirming the Appeals Board decision was supported by competent evidence and was neither arbitrary, capricious, nor unreasonable.
Although some evidence offered at the IDC hearing was not included in the record on appeal, Idelfonso does not claim that the missing evidence was exculpatory. The record before the district court contained sufficient evidence to affirm the Appeals Board decision. Therefore, the decision of the district court is affirmed.