COURTFILED
OF APPEALS
DIVISION 7I
2015 APR 21
M 9: 06
S T AT .. a ra r.
1
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Matter of No. 46864 -641
Personal Restraint Petition of
JOSEPH KOPPENSTEIN,
Petitioner.
UNPUBLISHED OPINION
JOHANSON, C. J. — Joseph Koppenstein seeks relief from personal restraint imposed
following a prison disciplinary proceeding in which a hearing officer found him guilty of violating
WAC 137 -25 -030 ( Category C – Level 1, infraction 610) ( unauthorized possession of a prescribed
medication greater than a single daily dose). 1 He claims that the evidence does not support this
infraction and asks that it be expunged.
We review prison disciplinary proceedings to determine whether the Department of
Correction' s ( DOC) action was so arbitrary and capricious as to deny the petitioner a
fair proceeding. In Reismiller, 101 Wn.2d 291, 294, 678 P. 2d 323 ( 1984). In
fundamentally re
1
The hearing officer also found petitionerguilty of violating WAC 137 -28- 220( 1) ( infraction 328)
and WAC 137 -25 -030 ( Category B– Level 2, infraction 556). He does not challenge these
infractions.
No. 46864 -6 -II
doing so, we look to whether petitioner received the due process protections afforded him under
Wolff v. McDonnell, 418 U.S. 539, 563 -65, 94 S. Ct. 2963, 41 L. Ed. 2d 935 ( 1974). These
protections include: ( 1) advance written notice of the charged violations, ( 2) the opportunity to
present documentary evidence and call witnesses when not unduly hazardous to institutional safety
and correctional goals, and ( 3) a written statement of the evidence relied on and the reasons for the
disciplinary action.
Petitioner challenges only the third of these protections, claiming no evidence supported
the infraction. We affirm a department' s decision as long as there is any evidence in the record to
support it. Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.
Ct. 2768, 86 L. Ed. 2d 356 ( 1985); In re Pers. Restraint ofJohnston, 109 Wn.2d 493, 497, 745
P. 2d 864 ( 1987). Here, the DOC contends that the evidence supporting the infraction consisted of
the reporting officer' s report in which the officer stated that petitioner did not have a valid
prescription for the three dicyclomine hydrochloride pills found in petitioner' s shirt pocket.
Petitioner argues that this is not true, that he had a valid prescription, that a daily dose is four pills,
and that Nurse Sheridan Roberts stated in his report, " The Offender does have a prescription for
this medication." Resp. Ex. 2, Attach. C.
This court' s role is not to reweigh the evidence but rather to determine if some evidence in
the record supports the hearing officer' s decision. The only evidence supporting the infraction is
the reporting officer' s statement that petitioner did not have a valid prescription. But nothing in
the record explains the reporting officer' s basis of knowledge, especially in that he asked the nurse
to identify the pills and the nurse reported that petitioner had a prescription for the drugs. While
the evidentiary standard is highly deferential to the disciplinary process, a verifiable fact should
2
No. 46864 -6 -II
not be disregarded for a conjectural statement. Certainly, this is not what our Supreme Court
intended when it defined the evidentiary standard that would satisfy due process. Hill, 472 U.S.
at 457. See Reismiller, 101 Wn.2d at 296 ( insufficient evidence because there was no reasonable
connection between the inmate and the evidence); see In re Hews, 99 Wn.2d 80, 88, 660 P. 2d 263
1983) ( if petitioner makes prima facie showing of actual prejudice but the record is insufficient
2
to determine the merits of his claims, court should remand for a new hearing).
Accordingly, we grant this petition. The DOC may expunge petitioner' s infraction or grant
petitioner a new hearing. If it holds a new hearing, the hearing officer should consider the available
evidence to decide if in fact petitioner had a valid prescription and what constitutes a daily dose in
deciding whether petitioner violated WAC 137 -25 -030 ( Category C — Level 1, infraction 610).
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,
it is so ordered.
We concur:
2 We disagree with the DOC that any error was harmless simply because the sanction was imposed
concurrently with his other infractions. There are more consequences than loss of good time. DOC
Policy 320. 150.
3