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Abruska v. State (9/9/95), 902 P 2d 319
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
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THE SUPREME COURT OF THE STATE OF ALASKA
MATTFI ABRUSKA, )
) Supreme Court No. S-6063
) Superior Court No.
) 3AN-92-9690 Civil
) O P I N I O N
DEPARTMENT OF CORRECTIONS, )
STATE OF ALASKA, ) [No. 4256 - September 8, 1995]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Dana Fabe, Judge.
Appearances: Mattfi Abruska, Seward, Pro Se.
Timothy W. Terrell, Assistant Attorney
General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MOORE, Chief Justice.
In this pro se appeal from a Department of Corrections
(DOC) disciplinary ruling, Mattfi Abruska contends that DOC's
actions during the disciplinary process deprived him of due
process of law. We reverse and remand.
I. FACTS AND PROCEEDINGS
Mattfi Abruska is an inmate at the Spring Creek
Correctional Center. On June 21, 1992, corrections officer Diane
Pillars filed an incident report charging Abruska with violating
22 AAC 05.400(d)(1) (prohibiting indecent exposure). In her
report, Officer Pillars stated that Abruska had deliberately
exposed his genitals to her on several occasions during night-
time security checks of Abruska's dorm module.
On June 26, 1992, Abruska was notified of the pending
charges and the scheduled disciplinary hearing date -- July 8,
1992. He was also allowed to select a staff advocate to help him
prepare for the hearing. Two days before the scheduled hearing,
Abruska notified the disciplinary committee that he waived the
assistance of a staff advocate at the hearing. He also requested
that Officer Pillars and two inmates, Frank Prince and Stanley
George, testify at the hearing.
On July 8, 1992, the disciplinary committee met briefly
and then postponed the hearing for thirty working days, citing
the fact that Officer Pillars was not available to testify.
Abruska was notified of the new hearing date on August 10 and was
provided with a new staff advocate. This staff advocate
discussed the hearing process with Abruska several days before
the rescheduled hearing. Abruska again requested that Officer
Pillars and inmates George and Prince testify at the hearing.
At the August 19th hearing, Abruska denied that he had
deliberately exposed himself to Officer Pillars. Abruska did not
question Officer Pillars, who was present at his request. The
disciplinary chairperson denied Abruska's request to have inmates
Prince and George testify on the grounds that they were not party
to the incident.
After the hearing, the disciplinary committee concluded
that Abruska had committed the infraction and sanctioned him with
one week of restriction to his living module. Abruska appealed
this decision to the Spring Creek Acting Superintendent and to
the Director of Institutions. Both appeals were denied.
Abruska appealed this decision to the superior court,
arguing that DOC's actions during the disciplinary process had
violated his right to due process. Abruska also asserted that
his staff advocate had refused to assist him in preparing his
appeal and that this refusal had violated his right to due
process. The superior court affirmed DOC's disciplinary action.
This appeal followed.
This court has held that a prison disciplinary
proceeding is not a criminal trial and that an inmate is
therefore not entitled to the full array of constitutional rights
due the accused in a criminal proceeding. McGinnis v. Stevens,
543 P.2d 1221, 1225-27 (Alaska 1975) (citing Wolff v. McDonnell,
418 U.S. 539, 556 (1974)). An inmate facing a major disciplinary
proceeding is, however, entitled to a number of procedural
safeguards under the Due Process Clauses of the federal and state
constitutions. Id. at 1225-36.
Appellate courts have jurisdiction to review DOC
administrative decisions which implicate an inmate's
constitutional rights.1 Owen v. Matsumoto, 859 P.2d 1308, 1309-
10 (Alaska 1993). Whether an inmate has received procedural due
process is an issue of constitutional law which this court
reviews de novo. Brandon v. Department of Corrections, 865 P.2d
87, 88 (Alaska 1993).
A. Postponement of Disciplinary Hearing
Abruska argues that he was deprived of his right to due
process because the disciplinary committee postponed the July 8th
hearing without adequate cause.
Under 22 AAC 05.435(a), the disciplinary committee must
postpone a disciplinary hearing if the accused inmate has
requested the presence of the staff member who wrote the
disciplinary report and the staff member is temporarily
unavailable at the time of the scheduled hearing. See also 22
In this case, the disciplinary committee met briefly on
July 8 and postponed the hearing for thirty working days after
determining that Officer Pillars, whose presence had been
requested by Abruska two days earlier, was temporarily
unavailable. Abruska met with his staff advocate to prepare for
the August 19th hearing on August 15.
Abruska contends that Officer Pillars was available on
July 8 and that DOC arbitrarily decided to postpone the hearing.
He also contends that he did not receive notice of the
postponement until August 15, 1992, and that DOC personnel
fabricated documents in an attempt to show that he had received
Abruska's arguments have little merit. The
disciplinary committee's decision to postpone the original
hearing comports with DOC regulations. See 22 AAC 05.435.
Furthermore, Abruska has failed to show that the postponement
prejudiced his ability to present a defense.
An inmate facing a major disciplinary hearing is
entitled to call witnesses and present documentary evidence
subject to certain limitations. DOC regulations provide:
The chairperson of the disciplinary committee
may decline, for compelling reasons, to call
a witness that the accused prisoner or
advocate has requested to appear, and may
restrict the introduction of other evidence
to avoid repetitious or irrelevant evidence
or to avoid a risk of reprisal or undermining
22 AAC 05.430(c). Furthermore, as we observed in McGinnis:
To the extent that the calling of witnesses
and presentation of evidence is repetitious
or irrelevant, the chairman of the
disciplinary committee is vested with the
discretion under the Division's regulations,
to limit testimony and the production of
543 P.2d at 1230.
In this case, Abruska contends that his right to due
process was violated because the disciplinary committee refused
to call inmates Frank Prince and Stanley George as witnesses.
According to Abruska, Prince and George would have testified that
Officer Pillars had cited them for similar conduct and that these
charges were false. To the extent that this testimony would have
tended to show that Officer Pillars had a history of filing
simliar unfounded charges against Native males, it was relevant
to impeach Officer Pillars' account of the incident. The
committee's chairperson thus erred in refusing to permit the
This error was compounded by the committee's failure to
comply with the procedural requirements set forth in 22 AAC
if the prisoner or the disciplinary committee
has requested the appearance of the staff
member who wrote the disciplinary report, the
staff member must be called into the room and
questioned under 22 AAC 05.435 and 22 AAC
A plain reading of this subsection indicates that the
disciplinary committee must question the staff member who wrote
the disciplinary report whenever the inmate has requested the
appearance of the writer of the report.2 Because the
disciplinary committee failed to question Officer Pillars when
she was called into the hearing, it failed to comply with this
Abruska was denied the opportunity to have the
committee hear testimony from any of the witnesses he had
requested. The committee's failure to question Officer Pillars,
together with the chairperson's exclusion of the testimony of the
two inmate witnesses, deprived Abruska of fundamental due process
rights under the Alaska Constitution. Brandon, 865 P.2d at 90.
We therefore remand this case to the superior court with
directions to order the disciplinary committee to set aside
Abruska's conviction and to conduct a new disciplinary hearing.
C. Assistance of Staff Advocate During Appeals
Finally Abruska asserts that he was denied due process
because his staff advocate refused to assist him in preparing his
internal agency appeals and his subsequent appeal to the superior
court. However, nothing in the record on appeal substantiates
Abruska's claim that he requested the assistance of his staff
advocate at any stage of the appeals process.
In any case, this argument necessarily fails because
Abruska did not have a constitutional right to a staff advocate
at any stage of the disciplinary process. See McGinnis, 543 P.2d
at 1225-26, 1231-32. In McGinnis, this court adopted the Wolff
rule regarding an inmate's right to counsel in major disciplinary
proceedings and held that an inmate who is either illiterate or
facing a complex case is constitutionally entitled to a staff
advocate. Id. Abruska does not fall into either of these two
categories. Therefore, even if Abruska's staff advocate did
refuse to help him prepare his appeals, this refusal would not
implicate Abruska's right to due process under either the federal
or state constitution.
REVERSED and REMANDED.
1 In his brief, Abruska repeatedly asserts that he did not
intentionally expose himself to Officer Pillars. He provides a
number of alternative explanations of the incident to support his
claim that the exposure was inadvertent. To the extent that
Abruska is challenging the disciplinary committee's finding that
he committed the cited offense, this issue is not properly before
this court on appeal.
2 This subsection requires both that the writer of the
report "be called into the room" and that the writer of the
report "be questioned under 22 AAC 05.435 [governing the
presentation of defense witnesses and evidence] and 22 AAC 05.445
[governing the examination of witnesses by both the defendant and
the disciplinary committee]."
Under a straightforward reading of this language, the
same subject is attributed to both verbs; or, in other words,
this provision requires the committee chairperson both to call
the writer of the report into the room and to question this
individual. This reading is consistent with the overall
organization of subsection (b)(5).