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Ildefonso v. Nebraska Department of Correctional Services

Court of Appeals of Nebraska

August 13, 2013

Arlyn P. Ildefonso, appellant,
v.
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

Riedmann, Judge

INTRODUCTION

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.

BACKGROUND

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 ...


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