Farrow v. CDOC

23CA1262 Farrow v CDOC 09-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1262
Fremont County District Court No. 22CV40
Honorable Lynette M. Wenner, Judge

Michael Farrow,

Plaintiff-Appellant,

v.

Executive Director of the Colorado Department of Corrections and Warden of
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

hazardous liquid assault on staff under C.R.C.P. 106.5. We affirm.

I. Background

¶2 Farrow was charged in a prison disciplinary proceeding with

hazardous liquid assault on staff after Officer Anthony Vasquez

reported that Farrow had spit on him during a prisoner escort.

According to Officer Vasquez’s report, Farrow was slouched over

during the transport, and when Officer Vasquez helped him to sit

up, Farrow tilted his head back and spit at Officer Vasquez’s face.

¶3 A hearing was held on the charge before a three-person board.

Farrow requested and was appointed an offender representative.

The hearing officer read Farrow the charge against him and the

possible sanctions, and Farrow entered a plea of not guilty. The

DOC disciplinary officer then read the notice of charge into the

record and presented evidence, including Officer Vasquez’s report,

the report of another correctional officer who had witnessed the

incident, a cost memorandum identifying the requested amount of

restitution, and a mental health assessment indicating that Farrow

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was not experiencing significant mental health symptoms during

the incident and could be held accountable for his actions.

¶4 After the disciplinary officer presented her case, the hearing

officer asked Farrow if he wanted to make a statement or present

evidence. Farrow responded that he wanted to call three witnesses:

(1) Dr. Hodge1: Farrow asserted that Dr. Hodge witnessed

the incident and could testify that Farrow did not

intentionally spit on Officer Vasquez.

(2) Office of the Inspector General Investigator Christopher

Barr: Farrow said that Investigator Barr had investigated

a staff misconduct complaint that Farrow had filed and

could testify about the results of that investigation.

Farrow also claimed that Investigator Barr was a witness

to two videos of the medical entryway where the incident

occurred. The hearing officer asked the disciplinary

officer if there were any videos of the incident, and the

disciplinary officer said she was not aware of any.

1 Dr. Hodge’s first name does not appear in the record.

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(3) Lieutenant Riley Nagl: Lieutenant Nagl was the shift

commander during the incident, and Farrow asserted

that he had “made sure the video evidence was collected”

and saved to be available for the hearing.

¶5 The board denied Farrow’s requests to call Dr. Hodge and

Investigator Barr. As to Dr. Hodge, the board concluded that the

proposed testimony was irrelevant because only Farrow could

testify about his intent. As to Investigator Barr, the board

explained that he was not present for the incident and his

investigation into alleged staff misconduct was separate from and

immaterial to the disciplinary proceeding. But the board continued

the hearing to allow it to conduct “due diligence” into Lieutenant

Nagl’s availability for testimony or access to video of the incident.

¶6 After the hearing, the disciplinary officer emailed Lieutenant

Nagl and Investigator Barr to ask whether there was video footage of

the incident. Both said there was not. Lieutenant Nagl elaborated:

I am not sure why [Farrow] is convinced there
is a video regarding this specific incident. This
was the third incident involving him on the day
that it occurred. All applicable video for the
separate incidents were [sic] downloaded into
the appropriate folders. There was no body
camera footage of the assault due to the

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offender being evaluated by clinical services
staff due to an emergent entry in intake of the
offender.

¶7 The continued hearing was set approximately three weeks

after the first. That day, prison staff advised the hearing officer that

the hearing would need to be rescheduled because Farrow was on a

mental health watch. The hearing officer declined to reschedule the

hearing and proceeded in Farrow’s absence, finding that Farrow

“consistently goes on [mental health watch] or becomes disruptive

prior to hearing” and had been “given multiple opportunities to

attend [the] hearing.” The hearing officer also noted that Farrow

had entered his plea and presented his defense at the first hearing,

and “[t]he only question remaining was regarding video.”

¶8 At the continued hearing, the hearing officer read the emails

from Lieutenant Nagl and Investigator Barr into the record, finding

that those emails sufficed to satisfy Farrow’s request to call them as

witnesses. Based on those emails, the hearing officer found that

there was no video footage because Farrow “was in medical.”

¶9 The board found Farrow guilty and imposed sanctions of ten

days in restrictive housing and $750 in restitution. Farrow filed an

administrative appeal, and the conviction was upheld.

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¶ 10 Farrow then filed a complaint in the district court for judicial

review under C.R.C.P. 106.5. The magistrate judge entered an

order affirming the conviction. Farrow timely petitioned the district

court for review of that decision, and the district court also affirmed

the conviction. Reviewing the matter de novo, the district court

concluded that there was “more than ‘some’ evidence supporting

Farrow’s conviction” and that Farrow was provided due process.

II. Due Process

¶ 11 Farrow contends that the DOC violated his constitutional right

to due process2 by (1) denying his requests to call witnesses;

(2) conducting the continued hearing in his absence; and

(3) destroying or concealing exculpatory evidence. We disagree.

A. Standard of Review and Applicable Law

¶ 12 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

2 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.

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prison officials exceeded their jurisdiction or abused their discretion

based on the evidence in the record before them. Marymee v. Exec.

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).

¶ 13 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. Id.3

3 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,
aside from his claim that the DOC destroyed or concealed evidence.

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B. Denial of Requests to Call Witnesses

¶ 14 Farrow first asserts that the hearing board denied him his due

process right to call witnesses when it rejected his request to call

Dr. Hodge and Investigator Barr and accepted an email from

Lieutenant Nagl in lieu of testimony. We are not persuaded.

¶ 15 An inmate’s due process right to call witnesses at a

disciplinary proceeding is “not absolute” and “must be balanced

against institutional needs and objectives.” Marymee, ¶ 20. Thus,

a hearing officer may deny a request to call witnesses when, among

other things, such testimony would be irrelevant. Id. When the

hearing officer denies such a request, they must document the

denial and the reasons for the denial on the record. Id. at ¶ 21.

¶ 16 The hearing officer complied with that procedure. She first

gave Farrow an opportunity to explain why he wanted to call the

requested witnesses. She then documented on the record why she

believed their testimony would be irrelevant in light of Farrow’s

explanation — Dr. Hodge, because he could not testify as to

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Farrow’s intent;4 and Investigator Barr, because he was not present

for the incident, and his employee misconduct investigation was

entirely separate from the disciplinary proceeding. See id. at ¶ 27.

Under the circumstances of this case, those evidentiary rulings did

not deprive Farrow of due process. See id. at ¶¶ 23, 25 (holding

that denial of request to call witness did not violate due process

where witness was not present during incident and the proposed

testimony would not have addressed the basis for the violation).

¶ 17 As to the third witness Farrow requested to call, Lieutenant

Nagl, the hearing officer continued the hearing for the express

purpose of investigating Farrow’s representation that Lieutenant

Nagl would testify as to the existence of videos of the incident.

Between the two hearings, however, Lieutenant Nagl made clear via

email that he would not so testify. To the contrary, he confirmed

what the disciplinary officer had already told the hearing officer —

4 Farrow sought to supplement the record with a report by Dr.

Hodge stating that Farrow was “transported without apparent
resistance,” and he cites that report in his opening brief. But a
party may not “supplement the record” with items that were not
before the district court (or the hearing board). People v. Ray, 2012
COA 32, ¶ 14. We therefore do not consider that report.

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that there was no video footage of the incident. Another email from

Investigator Barr confirmed the same thing.

¶ 18 Farrow argues that it was improper for the hearing officer to

rely on the emails from Lieutenant Nagl and Investigator Barr in

lieu of their live testimony. We disagree that this procedure violated

due process for four reasons. First, the emails were not offered or

relied on as substantive evidence of the charge; they were offered

only to confirm that no additional evidence existed. Second, they

were cumulative of what the disciplinary officer had already

represented. Third, the rules of evidence, including the hearsay

rule, do not apply in prison disciplinary proceedings. See Wolff v.

McDonnell, 418 U.S. 539, 567-68 (1974); DOC Admin. Reg.

150-01(IV)(F)(3)(g)(4) (allowing for admission of hearsay evidence).

Fourth, an inmate has no due process right to confront and cross-

examine adverse witnesses in such proceedings. Wolff, 418 U.S. at

567-68; Boles v. Bartruff, 228 P.3d 183, 186-87 (Colo. App. 2009).

C. Denial of Right to Attend Hearing

¶ 19 Farrow next argues that the hearing board denied him his

right to attend the hearing and present a defense by conducting the

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continued hearing in his absence. He asserts that the hearing

officer erred by concluding that he was at fault for his absence.

¶ 20 We agree with Farrow that the record does not support the

hearing officer’s finding that Farrow had “consistently [gone] on

[mental health watch] or become[] disruptive prior to hearing[s]” in

this case. The hearing was continued twice before the first

hearing — the first time because Farrow was in the infirmary, and

the second because Farrow’s facility was unable to conduct the

hearing due to COVID-19 protocols. Farrow appeared at the first

hearing, and the hearing officer continued the hearing to allow for

follow-up with Lieutenant Nagl. Farrow was on a mental health

watch at the time of the continued hearing. Even if that absence

could be attributed to Farrow — another point on which the record

is insufficient — there is no indication that it was part of a pattern.

¶ 21 But while it might have been better for the hearing officer to

continue the second hearing until Farrow could be present, Farrow

was not denied his right to present a defense. See Marymee, ¶ 18.

Farrow was present at the first hearing. He was appointed an

offender representative and given the opportunity to make a

statement and present evidence. Farrow asked several questions

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and made several objections and arguments, each of which the

hearing officer addressed. When Farrow insisted that there were

videos of the incident, the hearing officer continued the hearing to

allow the parties to determine whether any such video existed. The

sole purpose of the second hearing was to address that issue, and

no substantive evidence of the charge was presented.

¶ 22 Thus, Farrow was given the opportunity to present a defense

at the first hearing, which addressed the substance of the charge.

D. Destruction of Evidence

¶ 23 Farrow also maintains that the DOC violated his due process

rights by destroying or failing to preserve exculpatory video of the

incident. But Farrow points to nothing in the record to support his

allegation that such video existed. Our review is limited to the

evidence in the record before the board. C.R.C.P. 106(a)(4)(I).

¶ 24 Indeed, the record uniformly indicates that no video existed.

The disciplinary officer said she was not aware of any video.

Lieutenant Nagl confirmed there was no video and explained why:

Farrow was being evaluated by clinical services staff due to an

emergent situation. Investigator Barr also checked the system and

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found no videos. And the hearing officer found that there was no

video of the incident because Farrow was “in medical” at the time.

¶ 25 Farrow disputes this point. Relying on a memorandum that

was not part of the record before the hearing board, he asserts that

prison staff were required to record all interactions with him. 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). But Farrow’s disagreement with the hearing board’s

factual findings does not show that the board abused its discretion.

Cf. Marymee, ¶ 35 (“If the evidence is conflicting, the hearing

officer’s findings are binding on appeal, and we may not substitute

our judgment for that of the fact finder.”). To the extent Farrow

asserts that prison staff should have done more to capture and

preserve video of the incident, due process confers no such right.

III. Other Arguments

¶ 26 Farrow raises a number of challenges to the procedures and

rulings of the magistrate and district court, including that the

magistrate judge improperly required Farrow to pay a filing fee; that

the magistrate and district court evinced bias against him; and that

the district court sanctioned the DOC’s destruction of evidence.

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¶ 27 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.” Id. at ¶ 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,

neither of which has any bearing on our review of his conviction.

¶ 28 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 files of both

hearings in their entirety, with particular focus on those portions of

the hearing that are relevant to the claims Farrow makes on appeal.

IV. Disposition

¶ 29 The judgment is affirmed.

JUDGE FOX and JUDGE JOHNSON concur.

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