Atwood v. Ryan

A
                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                         FRANK JARVIS ATWOOD,
                            Plaintiff/Appellant,

                                        v.

                             CHARLES L. RYAN,
                              Defendant/Appellee.

                             No. 1 CA-CV 20-0298
                               FILED 2-9-2021


           Appeal from the Superior Court in Maricopa County
                          No. CV2019-095666
               The Honorable Janice K. Crawford, Judge

                                  AFFIRMED


                                   COUNSEL

Frank Jarvis Atwood, Florence
Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix
By Michael E. Gottfried
Counsel for Defendant/Appellee
                           ATWOOD v. RYAN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Jennifer B. Campbell joined.


M O R S E, Judge:

¶1            Frank Jarvis Atwood appeals from a court order declining
jurisdiction over his petition for special action ("Petition"). Because Atwood
has shown no error, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Atwood is an inmate at the Arizona Department of
Corrections ("ADOC"). On June 1, 2019, Atwood received a visit from his
wife and a private investigator. During the visit, a corrections officer
overheard Atwood describe the details of the route ADOC takes to
transport Atwood to reoccurring physical therapy appointments in Tucson.
The corrections officer placed Atwood on disciplinary report for conspiracy
to attempt a prison escape. ADOC classifies "escaping, or attempting to
escape" as a Class A disciplinary violation. Arizona Department of
Corrections Department Order ("ADOC Order") 803, No. 08A. Conspiring
to escape is also classified as a Class A offense. See ADOC Order 803, No.
07A (defining conspiracy to commit a Class A offense as a Class A offense).

¶3            On June 3, ADOC filed a formal disciplinary report charging
Atwood with "Conspiracy to Commit a Class A Offense." Atwood pled not
guilty. After a hearing on June 19, a disciplinary hearing officer ("DHO")
found Atwood guilty of the charged offense. Atwood received a penalty of
90-days parole class III, 30-hours extra duty, 30-days loss of privileges, 30-
days loss of visitation, and forfeiture of 120 earned-release credits. On June
19, ADOC provided Atwood a copy of the "Result of Disciplinary Hearing"
form. The form listed the DHO's finding and indicated the DHO relied on
information reports and the disciplinary report. No witness statements
were used or denied during the disciplinary hearing.

¶4            Atwood appealed to the warden. The warden upheld the
disciplinary decision, noting the information presented showed that
Atwood was "heard and observed giving information to [his] visitor about
the route taken, traffic and construction issues on the way to a reoccurring



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                            ATWOOD v. RYAN
                            Decision of the Court

off site medical appointments [sic] and was observed tracing the route
taken to the appointment on the visitor[']s leg."

¶5            Subsequently, Atwood was "referred for a Classification
Review and Hearing to determine whether [he] should be placed at
maximum custody institution . . . , due to resent [sic] disciplinary violation
where . . . Atwood was found guilty of conspiracy to commit a class A
felony[,]" and discipline for "disrespect to staff" after the Class A violation.
On July 21, Atwood wrote a letter to "Central Office Classification"
appealing his classification to maximum custody. The record is silent as to
the outcome of the appeal.

¶6            Atwood filed his Petition with the superior court asserting
"atypical and significant hardships" from prison conditions, insufficient
evidence to support the June 19 disciplinary decision, and due process
violations by ADOC. Atwood requested expungement of the disciplinary
report and reclassification from maximum-custody to close-custody status
"with all previously enjoyed privileges." Alternatively, Atwood requested
an evidentiary hearing and a jury trial to review whether ADOC violated
his due process rights.

¶7            Former ADOC Director Charles Ryan urged the superior
court to decline jurisdiction over Atwood's Petition, arguing Atwood's
claims did not warrant special-action relief. Alternatively, Ryan argued the
court should dismiss the Petition because ADOC did not violate Atwood's
constitutional rights.

¶8            The superior court issued a minute entry declining special-
action jurisdiction and ordering the dismissal of Atwood's Petition. The
superior court denied Atwood's motion for reconsideration and entered
judgment for Ryan.

¶9          Atwood timely appealed.          We have jurisdiction over the
appeal under A.R.S. § 12-2101(A)(1).

                               DISCUSSION

I.     Standard of Review.

¶10            Because the superior court did not accept jurisdiction of the
Petition, our review is limited to whether the court abused its discretion in
declining jurisdiction. Bilagody v. Thorneycroft, 

125 Ariz. 88

, 92 (App. 1979).
An abuse of discretion is "discretion manifestly unreasonable, or exercised
on untenable grounds, or for untenable reasons." Quigley v. City Ct. of City


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                            ATWOOD v. RYAN
                            Decision of the Court

of Tucson, 

132 Ariz. 35

, 37 (App. 1982). When reviewing for an abuse of
discretion, we "only intervene where no evidence exists to support the
decision." Bishop v. Law Enf't Merit Sys. Council, 

119 Ariz. 417

, 421 (App.
1978).

¶11            Courts generally accept jurisdiction over a special-action
petition "where the issues raised in the petition are such that justice cannot
be satisfactorily obtained by other means," King v. Superior Court, 

138 Ariz. 147

, 149 (1983), or where "no 'equally plain, speedy, and adequate remedy
by appeal' exists," Home Builders Ass'n of Cent. Ariz. v. Kard, 

219 Ariz. 374

,
381, ¶ 32 (App. 2008) (quoting Ariz. R.P. Spec. Act. 1(a)). "The denial of
special action relief is a discretionary decision for the superior court which
will be upheld for any valid reason disclosed by the record." State ex rel.
Dean v. City Ct. of City of Tucson, 

123 Ariz. 189

, 192 (App. 1979).

II.    Sufficiency of Evidence.

¶12           Atwood asserts that the superior court should have accepted
jurisdiction over his Petition because there was no evidence supporting
ADOC's disciplinary decision. We disagree.

¶13           In prison disciplinary proceedings, the revocation of earned-
release credits satisfies the requirements of due process "if some evidence
supports the decision by the prison disciplinary board . . . ." Superintendent,
Mass. Corr. Inst. v. Hill, 

472 U.S. 445

, 455 (1985). "Ascertaining whether this
standard is satisfied does not require examination of the entire record,
independent assessment of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there is any evidence in
the record that could support the conclusion reached by the disciplinary
board."

Id. at 455-56. ¶14

           Atwood admits that he spoke with visitors about construction
"bringing traffic to a crawl . . . which caused tardiness to the [physical
therapy] appointment on May 30." Atwood also admits he told visitors "the
fact of construction and/or traffic on a prior medical transport," but argues
that "[t]he mention of where traffic/construction on one transport occurred
cannot tip off anyone . . . what route a future transport may take."

¶15            Atwood's admission, along with the disciplinary report,
constitute "some evidence" supporting the disciplinary decision. See Cook
v. Ryan, 

249 Ariz. 272

, 277, ¶ 21 (App. 2020) (finding a correctional officer's
disciplinary report was sufficient evidence to support disciplinary
decision); see also McPherson v. McBride, 

188 F.3d 784

, 786 (7th Cir. 1999)
(finding disciplinary report provides some evidence for disciplinary


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                           ATWOOD v. RYAN
                           Decision of the Court

decision). Even if a different interpretation could have been drawn from
Atwood's conversation, because some evidence supports the decision, he
has not established that the superior court abused its discretion in declining
special-action jurisdiction. See 

Quigley, 132 Ariz. at 37

("A difference in
judicial opinion is not synonymous with 'abuse of discretion.'").

III.   Due Process.

¶16           Atwood argues the superior court should have accepted
jurisdiction over his Petition because ADOC deprived him of due process.
Although our review is limited to whether the trial court abused its
discretion by declining to accept jurisdiction over Atwood's Petition,
determining whether an abuse of discretion occurred requires us to briefly
consider the merits of Atwood's due process claims.

¶17           Because Atwood's disciplinary hearing resulted in the
forfeiture of earned-release credits, Atwood was entitled to receive: "(1)
advance written notice of the disciplinary charges; (2) an opportunity, when
consistent with institutional safety and correctional goals, to call witnesses
and present documentary evidence in his defense; and (3) a written
statement by the factfinder of the evidence relied on and the reasons for the
disciplinary action." See 

Hill, 472 U.S. at 454

. To show reversible error,
Atwood must demonstrate prejudice. See 

Cook, 249 Ariz. at 275-76

, ¶ 10.

¶18            Atwood appears to challenge the adequacy of the written
notice of the disciplinary charges, arguing that ADOC's failure to allow him
to review evidence prior to the hearing prevented him from being able to
"know/understand the evidence at issue and to construct a defense[] . . . ."
However, ADOC served Atwood with a copy of the "Inmate Disciplinary
Report" on June 3, as acknowledged by Atwood's signature. The
disciplinary report informed Atwood of the circumstances of the alleged
violation, stating that "[o]n 06/01/2019 at approximately 0930 hours as [the
sergeant] observed [Atwood's] contact visit with Rachel Atwood and John
Ryan, heard [inmate] Atwood give details of the route that transportation
takes when he is transported to Tucson." Providing Atwood with the
disciplinary report on June 3—more than two weeks before the disciplinary
hearing scheduled for June 19—satisfied due process. See 

Hill, 472 U.S. at 454

; see also Wolff v. McDonnell, 

418 U.S. 539

, 564 (1974) ("At least a brief
period of time after the notice, no less than 24 hours, should be allowed to
the inmate to prepare for the appearance before the Adjustment
Committee").




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                            ATWOOD v. RYAN
                            Decision of the Court

¶19           Atwood also challenges the adequacy of the written statement
explaining the disciplinary decision. On June 19, ADOC provided Atwood
with the "Result of Disciplinary Hearing" form, which indicated that the
DHO relied on "Information Reports" and the "Disciplinary Report" in
finding Atwood guilty of a Class A offense. Atwood argues the form was
insufficient. We disagree. ADOC provided Atwood with "a written
statement by the factfinder of the evidence relied on and the reasons for the
disciplinary action." See 

Hill, 472 U.S. at 554

. The "Result of Disciplinary
Hearing" form clearly indicated the evidence the DHO relied upon and
listed "07A" as the charge against Atwood. A more detailed explanation
was not required. See Montgomery v. Whidbee, 

446 F. Supp. 3d 306

, 318 (M.D.
Tenn. 2020) (finding prisoner's allegation that he was not provided a
"detailed" explanation for prison's disciplinary action fell short of stating a
plausible due process claim because he did not allege that he "was deprived
of a written explanation altogether").

¶20           Atwood further claims that ADOC denied him due process
by refusing to call witnesses on his behalf and not allowing him access to
the information reports and a video recording of the incident. The "Results
of Disciplinary Hearing" form did not indicate that any video was used as
evidence against Atwood. And it is unclear from the record whether
Atwood requested access to the information reports and video recording
prior to the disciplinary hearing. Moreover, the record is also mixed as to
whether Atwood actually submitted witness-request forms prior to the
disciplinary hearing. Atwood claims he submitted three witness-request
forms, but the alleged forms are not found in the record, and the "Result of
Disciplinary Hearing" form indicates that no witness statements were used
or denied.

¶21            Regardless, Atwood fails to show how any of the allegedly
excluded evidence would have had a tendency to exonerate him. See State
v. Glissendorf, 

235 Ariz. 147

, 150, ¶ 9 (2014) ("To show that evidence had a
'tendency to exonerate,' the defendant must do more than simply speculate
about how the evidence might have been helpful."). Atwood does not
dispute that he described details of his travel route, including traffic and
construction information, to his visitors. Thus, neither the video recording
of the visit, the information reports, nor witness testimony would
materially change the facts found by the DHO. Instead, Atwood speculates
that they could have changed the DHO's conclusion drawn from those facts.
Such speculation is insufficient

, id., and any hypothetical

error is harmless,
see Piggie v. Cotton, 

344 F.3d 674

, 678 (7th Cir. 2003) (rejecting alleged due
process violation based on harmless-error analysis because inmate failed to



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                            ATWOOD v. RYAN
                            Decision of the Court

explain how excluded testimony would have aided in his defense against
disciplinary charges).

IV.    Miscellaneous Claims.

       A.     Alleged Falsification and Retaliation.

¶22            Atwood alleges that ADOC falsified the disciplinary charge
against him in retaliation for pursuing post-conviction relief, litigating a
civil-rights complaint against ADOC, and contravening ADOC's policy
regarding the manner of storing his criminal case file. Atwood attempts to
reveal a pattern of retaliation by making various allegations of misconduct
on the part of ADOC. However, Atwood admits that he commented on
traffic and construction details encountered on his transportation route.1
Thus, Atwood fails to show that ADOC falsified the disciplinary charges
against him or that he was disciplined for improper reasons.

       B.     Atypical and Significant Hardships.

¶23            Atwood argues that his classification to maximum-custody
status and housing in a cell without handicap bars imposed an "atypical
and significant hardship" relative to the ordinary incidents of prison life.
See, e.g., McKune v. Lile, 

536 U.S. 24

, 37 (2002) ("[C]hallenged prison
conditions cannot give rise to a due process violation unless those
conditions constitute 'atypical and significant hardship[s] on [inmates] in
relation to the ordinary incidents of prison life.'" (quoting Sandin v. Conner,

515 U.S. 472

, 484 (1995)). The superior court did not abuse its discretion in
declining jurisdiction because these claims can be resolved in a standard
civil lawsuit. See, e.g., Ramirez v. Galaza, 

334 F.3d 850

, 852 (9th Cir. 2003)
(concluding that inmate's challenge of his segregated confinement as a
potential atypical and significant hardship was cognizable under 42 U.S.C.
§ 1983). Therefore, Atwood had access to a "plain, speedy, and adequate
remedy at law" to seek redress for his claims. See Neary v. Frantz, 

141 Ariz. 171

, 178, (App. 1984) (finding special-action petition was "an inappropriate
vehicle" for First Amendment claims where appellant had cause of action
under 42 U.S.C. § 1983).




1      Atwood also admits that he pursued "an alternative" method of
storing his criminal case file materials, despite warnings that such conduct
would result in discipline.


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                            ATWOOD v. RYAN
                            Decision of the Court

                               CONCLUSION

¶24             Because of (i) the existence of some evidence to support the
disciplinary decision; (ii) the lack of merit to Atwood's due process claims;
and (iii) the availability of an adequate alternative remedy for Atwood's
claims concerning his prison conditions, the superior court did not abuse
its discretion in declining special-action jurisdiction. We affirm the superior
court's order.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




                                         8

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