CourtListener 10130078•Farrow v. CDOC
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23CA0777 Farrow v CDOC 09-26-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0777
Fremont County District Court No. 22CV9
Honorable Lynette M. Wenner, Judge
Michael Farrow,
Plaintiff-Appellant,
v.
Executive Director of the Colorado Department of Corrections and Warden at
Colorado State Penitentiary,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE SCHOCK
Fox and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 26, 2024
Michael Farrow, Pro Se
Philip J. Weiser, Attorney General, Rebekah Ryan, Assistant Attorney General,
Denver, Colorado, for Defendants-Appellees
¶1 Plaintiff, Michael Farrow, an inmate in the custody of the
Colorado Department of Corrections (DOC), appeals the district
court judgment affirming his prison disciplinary conviction for
verbal abuse of prison staff under C.R.C.P. 106.5. We affirm.
I. Background
¶2 Farrow was charged in a prison disciplinary proceeding with
verbal abuse of Sergeant Dakota Green. According to Sergeant
Green’s report, Sergeant Green ordered Farrow to stop kicking his
cell door. Farrow responded, “Shut up bitch.” Sergeant Green told
Farrow, “The verbal abuse will not be tolerated sir.” And Farrow
responded, “Racist ass motherfucker, racist trailer park piece of
shit. Fucking white trash.”
¶3 The hearing was originally scheduled for November 19, 2021.
But Farrow was on a mental health watch from November 16 to
November 20. So on the morning of the hearing, a prison official
requested to continue the hearing because Farrow needed time to
prepare a defense. The hearing was reset for November 30.
¶4 The morning of the rescheduled hearing, three correctional
officers asked Farrow if he wanted to attend his hearing. Farrow
was unresponsive. When an officer went to Farrow’s cell to escort
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him to the hearing, Farrow stood at the cell door looking at him but
would not verbally respond. The officers told Farrow that his lack
of a response would be taken as a refusal to attend the hearing, and
the hearing would proceed in his absence. Farrow still did not
respond. Officer Martinez completed and signed a form stating that
Farrow had waived his right to attend his hearing. The form stated:
“Refused to attend. Passive at cell door.” The two other officers
who witnessed the interaction were also noted on the form.
¶5 The hearing was held in Farrow’s absence. The hearing officer
noted that Farrow had been timely served with the notice of charge
and entered a not guilty plea on Farrow’s behalf. The disciplinary
officer then read the notice of charge and presented Sergeant
Green’s incident report. The hearing officer found Farrow guilty
and imposed sanctions of ten days of lost privileges. Farrow filed
an administrative appeal, and the conviction was upheld.
¶6 Farrow then filed a complaint in the district court for judicial
review under C.R.C.P. 106.5. The magistrate dismissed the
complaint for failure to prosecute. Farrow timely petitioned the
district court for review of that decision, and the district court
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vacated the dismissal. The district court then entered an order
affirming the conviction.
II. Due Process
¶7 Farrow contends that the DOC violated his constitutional right
to due process1 by continuing the hearing and then refusing to
allow him to attend the hearing, thus denying him his right to
present a defense. We disagree.
A. Standard of Review and Applicable Law
¶8 In reviewing a prison disciplinary conviction under C.R.C.P.
106.5, we sit in the same position as the district court and review
its ruling de novo. Dawson v. Exec. Dir. of Colo. Dep’t of Corr., 2014
COA 69, ¶ 6. Our review is limited to determining whether the
prison officials exceeded their jurisdiction or abused their discretion
based on the evidence in the record before them. Marymee v. Exec.
1 Farrow also asserts that the DOC violated his constitutional right
to equal protection, but he does not develop this argument, so we
decline to consider it. See Woodbridge Condo. Ass’n v. Lo Viento
Blanco, LLC, 2020 COA 34, ¶ 41 n.12, aff’d, 2021 CO 56. He also
alludes to double jeopardy but does not develop that argument
either. See id.; see also Lucero v. Gunter, 17 F.3d 1347, 1351 (10th
Cir. 1994) (“Prison disciplinary hearings are not part of a criminal
prosecution and therefore do not implicate double jeopardy
concerns.”) (citation omitted); People v. Watson, 892 P.2d 388, 389-
90 (Colo. App. 1994).
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Dir. of Colo. Dep’t of Corr., 2014 COA 44, ¶ 5; see also C.R.C.P.
106(a)(4)(I); C.R.C.P. 106.5(a). Unless prison officials have
misinterpreted or misapplied the law, we must uphold the decision
if there is “some evidence” in the record to support it. Dawson, ¶ 7;
see also Kodama v. Johnson, 786 P.2d 417, 420 (Colo. 1990).
¶9 Prison disciplinary proceedings must also comport with due
process. See Mariani v. Colo. Dep’t of Corr., 956 P.2d 625, 628
(Colo. App. 1997). But “[a]n inmate in a disciplinary hearing enjoys
only the most basic due process rights.” Id. Those rights are
limited to (1) the right to advance written notice of the charge;
(2) the right to call witnesses and present a defense “when doing so
does not interfere with the security and order of the institution”;
and (3) a written statement from the hearing officer setting forth the
reasons for the disciplinary action and the evidence relied on.2 Id.
B. Continuance of Hearing
¶ 10 Farrow first takes issue with the continuance of the hearing
that was originally scheduled for November 19, 2021. He asserts
2 Farrow does not challenge the adequacy of the written notice of
the charge or the hearing officer’s written statement. Nor does he
challenge the sufficiency of the evidence to support his conviction.
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that he was not on a mental health watch at the time of the hearing
and did not say he wanted a continuance to prepare his defense.
¶ 11 The memorandum denying Farrow’s administrative appeal
confirms that Farrow was on a mental health watch from November
16 to November 20. But more to the point, it does not matter. The
hearing was continued for good cause at the request of prison staff.
See DOC Admin. Reg. 150-01(IV)(F)(3)(j)(1) (providing that hearing
officer may grant a continuance for a reasonable period of time for
good cause upon the request of the offender or the DOC employee).
Farrow received notice of the continued hearing seven days in
advance. There was no due process violation. See Marymee, ¶ 18
(requiring notice at least twenty-four hours before the hearing).
C. Waiver of Right to Attend Hearing
¶ 12 Farrow next argues that he did not waive his right to attend
his hearing and that the waiver form signed by Officer Martinez,
stating that Farrow “[r]efused to attend,” is false.
¶ 13 An inmate’s due process right to present a defense “must be
balanced against institutional needs and objectives.” Id. at ¶ 20.
Although the Code of Penal Discipline recognizes an offender’s right
to be present at a disciplinary hearing, inmates can waive that right
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in writing or through their behavior. DOC Admin. Reg.
150-01(IV)(F)(4)(a)(2). If an offender refuses to attend the hearing,
the hearing will proceed in the offender’s absence, the refusal must
be documented on the record, and a hearing waiver must be
completed. DOC Admin. Reg. 150-01(IV)(F)(4)(a)(5).
¶ 14 The DOC complied with that procedure in this case. The
hearing officer found, with record support, that Farrow had refused
to attend the hearing. Officer Martinez signed the hearing waiver
providing that Farrow had “refused to attend” and remained
“passive at [his] cell door.” The other two officers who witnessed the
interaction were also noted on the form. And at the hearing, as well
as in the written disposition, the hearing officer addressed the
circumstances of Farrow’s refusal in greater detail. Contrary to
Farrow’s assertion, he did not need to sign the waiver form; he
could also waive his right to attend through his behavior.
¶ 15 Farrow’s primary argument is that the officers’ account of his
refusal to attend the hearing is false. He points to a
memorandum — which was not in the record before the hearing
officer — that required prison staff to activate their body cameras
during certain interactions with Farrow. He contends that the
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officers’ failure to record their interaction with Farrow on the
morning of the hearing should therefore create a “rebuttable
presumption” that their account of that interaction was false. But
see Higgins v. Colo. Dep’t of Corr., 876 P.2d 124, 126 (Colo. App.
1994) (holding that petitioner may not assert error on ground not
asserted at hearing).
¶ 16 But we cannot make credibility findings or substitute our
judgment for that of the hearing officer. See Marymee, ¶¶ 33, 35.
The hearing officer found Officer Martinez credible as to what
occurred. Because there is record support for that finding —
namely, the signed hearing waiver form — we are bound by it. Id.
at ¶ 35. Moreover, even if we were to consider the memo
concerning activation of body cameras by prison staff, it would not
give Farrow a due process right. See Deason v. Kautzky, 786 P.2d
420, 422 n.5 (Colo. 1990) (noting that DOC’s failure to follow its
own procedural regulations does not violate due process).
III. Other Issues
¶ 17 Farrow also maintains that the magistrate and district court
committed several errors and constitutional violations, including by
(1) requiring him to pay a filing fee; (2) assigning the case to a
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magistrate without consent; (3) failing to serve him with orders;
(4) ordering the magistrate back on the case after he recused;
(5) denying his motion for change of venue; (6) denying his motions;
(7) setting too short of a briefing schedule; (8) demonstrating bias
against him; and (9) making clearly erroneous factual findings.
¶ 18 But “our review in a C.R.C.P. 106.5 action is limited to the
decision of the administrative body itself, and not that of the district
court.” Marymee, ¶ 36. In other words, we independently review
the board’s decision with no deference to the district court’s rulings.
Dawson, ¶ 6. We therefore do not consider Farrow’s arguments
regarding the propriety of the magistrate or district court orders,
none of which has any bearing on our review of his conviction.
¶ 19 We also decline to revisit this court’s previous denial of
Farrow’s request for access to the audio recording of his disciplinary
hearing. See FSDW, LLC v. First Nat’l Bank, 94 P.3d 1260, 1262
(Colo. App. 2004) (“We generally will decline to revisit rulings of the
motions division, especially when they reflect some discretionary
consideration.”). Farrow asserts that he is prejudiced by that denial
because he cannot cite to specific points in the audio file to support
his claim of error. But we have listened to the audio file in its
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entirety, and the pertinent portions of the hearing are fully and
accurately reflected in the hearing officer’s written disposition.
IV. Disposition
¶ 20 The judgment is affirmed.
JUDGE FOX and JUDGE JOHNSON concur.
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