John Lanahan, under appointment by the Court of Appeal, for Petitioner.
Bill Lockyer, Attorney General, James M. Humes, Chief Assistant Attorney General, Frances T. Grunder, Assistant Attorney General, Jane Catherine Malich, Collette C. Cavalier and Heather Bushman, Deputy Attorneys General, for Respondent.
In this matter, we are called upon to interpret several administrative regulations used by the prison authorities to award work-time behavioral credits/points which affects an inmate's classification score and impacts on his custody level and privileges within the prison system. Petitioner Marcus W. Player, who is serving a 31-year-to-life prison term for a 1983 murder/robbery case, has filed a petition for a writ of habeas corpus, challenging the refusal of respondent Department of Corrections and Rehabilitation (DOCR) to grant him such points under Title 15 of the California Code of Regulations,[1] section 3375.4, subdivision (b)(4) for three six-month periods for which his work status classification was interrupted without his fault or for which his work status was reinstated because he had been exonerated of wrongdoing that had removed him from his work status. Player asked this court to order an appropriate reduction of his classification points on his annual reviews (ARs) for 1996, 1997 and 2000, and based on his adjusted classification scores that he be considered for a custody level reduction. We issued an order to show cause (OSC) and now grant the relief requested, finding the DOCR's interpretation of the " period" considered " continuous" for the reclassification annual review (AR) in subdivision (a) of section 3375.4, which effects the granting of favorable points/credits for average or above performance work for qualifying assignments in work and school programs, is unreasonable and unfairly applied in this case.
BACKGROUND FACTS
In an unpublished opinion filed on April 30, 2004, this court granted Player's petition for habeas corpus relief in case number D041462, which had sought to vacate a March 15, 1996 finding that Player had conspired to assault a member of the prison staff of Calipatria State Prison. Player, who had been in a " credit-qualifying" work
assignment before that finding, was placed in administrative segregation on August 16, 1995, sentenced to serve a 12-month term in the SHU (Security Housing Unit) starting in November 1995, and had his work assignment suspended as a result of the finding. He was not reassigned for credit-qualifying work until April 19, 1997, and did not receive any favorable credits/points reduction on his annual reclassification reviews for 1996 or 1997. After having pursued a series of unsuccessful rounds in the administrative appeal arena and superior court, we granted Player's request not only to vacate the finding of guilt for conspiracy to assault prison staff, but also to dismiss the Rules Violation Report (RVR) referring to such incident (RVR, Log. No. 09-95-D052), to delete any reference to such RVR from Player's central prison file (C-file), to restore 150 days lost credit to Player, and to redetermine Player's classification status.
During the time Player was challenging the March 1996 finding, he was also involved with administrative review of a decision by the Institutional Classification Committee (ICC) denying him favorable work points for the annual classification review period of 1999 through 2000 for which he had suffered a nonadverse transfer, was placed in administrative segregation and then sent to court, all through no fault of his own. His appeal regarding favorable points during that period was denied at the first level even though the Unit Classification Committee (UCC) had granted Player " S" [2] time from his date of arrival at Calipatria until he was rehired and had retained his work status as " A1/A" [3] based on the transfer being nonadverse.
Player's appeal from the first level regarding the 1999 through 2000 period was partially granted at the second level of review by the Chief Deputy Warden at Calipatria. In awarding Player two favorable points, the warden reasoned:
" You [Player] were unassigned 12/07/99 due to a non-adverse transfer to CEN [(Centinela)]. You were reassigned on 1/01/00 and unassigned on 3/02/00 due to your placement in Administrative Segregation resulting from an enemy concern. You were then transferred to CAL [(Calipatria)] on 5/17/00. On 6/28/00, you went out to court as a witness to FresnoCounty and returned to CAL on 7/25/00. The annual review for this time period is 9/20/99 through 9/19/00. [¶] The first six-month period you do qualify for two (2) favorable behavior points for work, due to working satisfactory and that the transfer to CEN was non-adverse in nature. The second six month period for this annual review, you did not qualify for favorable points for work, due to you were unassigned."
On July 30, 2004, the ICC at Calipatria met with Player to recalculate his classification score in compliance with our order in case no. D041462. Before doing so, the ICC reduced Player's classification score by eight points for remaining discipline free and receiving average or above performance reports for the two six-month periods from August 2003 through July 2004. It then vacated the 12-month SHU term assessed in 1995 based on the dismissed RVR, changed Player's work status effective " 5/31/96" to
" A1/A effective 6/22/95," granted him " S" time from " 8/16/95 until 4/19/97," and corrected his placement score to reflect " 8 favorable points . . . ."
Based on the grants of " S" time on May 31, 2000, and again on July 30, 2004, Player filed an inmate appeal September 16, 2004, claiming entitlement to four additional favorable work reduction credits on each of his annual reclassification forms or score sheets (CDC Form 840) for July 1996, August 1997 and August 2000. On November 8, 2004, his second level of appeal was partially granted. Based on the review of Player's C-file, a correctional counselor discovered that Player should have " received two (2) points for the period of June 1995 to December 1995 covered on CDC 840 dated May 16, 1996 where [his] Annual Review [AR] was held on June 14, 1995 and [he was] assigned on June 22, 1995. [¶] [Player was] placed in Administrative Segregation . . . on August 16, 1995 and should have received 2 points in accordance with [section] 3375.4 when an inmate's status is interrupted during the period due to no fault of the inmate the period shall be considered continuous. However that only applied to the period of June 1995 to December 1995 and does not apply to the AR of July 23, 1996 for the period of December 1995 to June 1996. [¶] On [Player's] August 26, 1997 [AR] that covered the period from September 1996 to September 1997, [he] only received 2 points because [he was] assigned on April 19, 1997 covering the second period of the AR not the first because [he was] A1A unassigned and in accordance with [section] 3375.4[, subdivision] (b)(4)(3),[[4]] credit shall not be given to inmates who are not participating in a program. [¶] The same applied for the AR held on August 13, 2000 where [Player] received 2 points on a correction . . . due to being unassigned due to no fault of [his own] and the period was reviewed as continuous. However, [Player] did not get credit for the second period because [he was] not assigned during the beginning of the period, and the continuous period per [section] 3375.4 does not apply."
On November 17, 2004, Player filed a director's level appeal of the denial of the additional point reductions in his total classification score. After having received no response to his appeal within 60 working days, Player filed a petition for writ of habeas corpus in the Imperial County Superior Court on March 1, 2005, seeking the additional favorable credits/points. Player also claimed the exhaustion of his administrative remedies was futile and would result in irreparable harm because DOCR had returned his appeal " 91 days" after being filed for additional documentation causing delay in resolving the matter which would effect his current AR to a lower custody level inmate based on his favorable behavior the past year. The court issued an OSC on March 22, 2005.
During the pendency of the superior court petition for writ of habeas corpus, Player's director's level appeal was denied. The decision doing so filed May 20, 2005, found that Player had " failed to submit the required documentation to warrant an additional placement score reduction. Two six-month periods make up an AR. When an inmate's status is interrupted during one period of review without fault, the AR for that 'one' period shall be considered continuous. Favorable points for two review periods are not covered under the definition of favorable points listed in the [section] 3375.4[, subdivision] (a). Additionally, 'S' time granted by a classification committee for a specific timeframe does not equate to granting an inmate two favorable points for all categories for the AR period. While the institution supports their decision based upon [section] 3375[, subdivision] (b)(4)[(B)], the CCR cited herein [sections 3044, 3375, and 3375.4] supports the institution's decision."
The director's level appeal decision further noted that it exhausted " the administrative remedy available to [Player] within [DOCR]." Although Player advised the superior court of this fact in his July 1, 2005 points and authorities filed with his reply to the return to his petition for habeas corpus relief, the court on August 1, 2005, denied the petition for failure to exhaust administrative remedies.
Player filed the instant petition for writ of habeas corpus on August 24, 2005.
THE PETITION AND PROCEEDINGS IN THIS COURT
In Player's verified petition filed in pro per, he requested this court order DOCR grant him favorable credits/points for satisfactory work for the two periods of time he was awarded " S" time, i.e., from August 16, 1995 to April 19, 1997, and from March 2, 2000, until he was rehired. Player also requested this court order the DOCR to reduce his classification points and reclassify him so that he can be considered for a decrease in custody from Level IV to Level III. In support of his petition, Player cited section 3045.3, subdivision (a), which provides that " S" time is to be considered the same as time worked for purposes of earning credit, and section 3375.4, subdivision (b)(A), which states that " [i]nterruptions to higher custody assignments which are not the fault of the inmate, such as an out-of-court or found not guilty of rule violation charge, shall not negate credit."
In the Attorney General's informal response filed October 31, 2005, DOCR argued Player had already been awarded all the favorable work credits to which he is entitled during the times claimed and that this court should defer to the DOCR's interpretation of its regulations to uphold the classification actions it took regarding this matter. DOCR argued that the granting of " S" time does not necessarily entitle an inmate to favorable work-reduction credits on his reclassification form and that credits for each six-month period covered by an AR are contingent on the inmate's holding a credit-qualifying assignment at the beginning of each period.
Player filed a reply November 15, 2005, essentially reiterating his position that the award of " S" time credit was not limited to interruption of a credit-qualifying assignment in a single six-month period for an AR. Based on case law, sections of the DOCR's operations manual and the California Code of Regulations, Player claimed the DOCR's interpretation was unreasonable.
On December 7, 2005, we issued an OSC why the relief Player requested should not be granted. At that same time, we requested Appellate Defenders, Inc. to recommend counsel to represent Player in these proceedings and set a briefing schedule the parties would follow after appointment of counsel. Counsel was appointed for Player on December 20, 2005.
DOCR filed a formal return to the petition on March 7, 2006, admitting Player had exhausted his administrative remedies regarding the issues raised by his petition, and that prison officials had granted Player " S" time from June 22, 1995 until April 1997 which provided him " credit for authorized absences from work, school or vocational assignments, and allow[ed him] to earn sentence reducing credits [he] would have otherwise been permitted to earn had [he] been assigned to a program and not been absent. [Citation.]" DOCR denied Player's allegations he was entitled to be assigned to a program that qualified him for sentence-reducing credits, that he was assigned to a work, school or vocational program for the six-month periods preceding each of his classification reviews conducted on July 23, 1996, August 26, 1997 and August 15, 2000, and that he was entitled to favorable behavior points during those reclassification proceedings for participation in a work, school or vocational program during those times in which he was not assigned to such programs. In its points and authorities, DOCR argues Player's position for entitlement to favorable work behavior credits/points is based on the mistaken belief that " S" time is the same as " assigned" status and maintain Player is not entitled to relief because he was " unassigned" to any qualifying assignment during the periods for which he claims additional credits/points.
Counsel for Player filed a traverse to the return on April 6, 2006, agreeing Player had exhausted his administrative remedies, that he was unassigned to work, school or a vocational program from August 16, 1995 to April 19, 1997, due to the suspension of his assignment status based on the conspiracy finding for which he was later exonerated in case no. D041462, and that he was subsequently granted " S" time credits for that period. Player alleges he was entitled under section 3034.6, subdivision (c)(2) and section 3375.4, subdivision (a) to " 'favorable points' that would reflect continuous work assignment for all periods for which he was held in administrative segregation [and the SHU] as a result of the 'adverse transfer' based upon a charge for which he was later exonerated" and that he was also entitled under section 3375.4, subdivision (a) to " two 'favorable points' for a work, school, or vocational program that was interrupted by the non-adverse placement in administrative segregation on March 2, 2000."
In his points and authorities, Player's counsel stresses that although Player was not continuously in credit-qualifying assignments during the periods in question, such was due respectively to the conspiracy charge for which he was later exonerated and the nonadverse transfer in 2000. But for Player being removed from his then qualifying work status and assignment due to such events, his credit-qualifying placement would have continued during the questioned periods. He argues that a reading of the plain language of sections 3043.6, subdivision (c)(2) and 3375.4, subdivision (a) supports a finding that Player is entitled to favorable work points/credits for the " continuous period" of each questioned reclassification AR, containing two periods of six-months for the respective AR which was interrupted through no fault of Player. In essence, counsel asserts DOCR's interpretation and application of the pertinent regulations regarding a continuous period for purposes of favorable behavior points so that it precludes Player from benefiting from such reclassification credit/point for the three periods of time in question is unfair and violates due process.
[1] All section references are to title 15 of the California Code of Regulations unless otherwise specified.
[2] The DOCR's operations manual (March 2000), referred and cited to as DOM, provides that " 'S' time (security time off) is an authorized absence from an inmate's work/training assignment that is required by the prison administration and/or beyond the inmate's control. [¶] Recorded 'S' time shall be considered the same as time worked for purposes of credit earning." (DOM, § 53130.9)
[3] A work status of " A1/A" qualifies an inmate for full-time work/training assignment and entitles the inmate to earn appropriate work credits. (See DOM, §§ 53130.5-53130.7.1.)
[4] We presume the correctional counselor meant section 3375.4, subdivision (b)(4)(B) which provided in the original version that " The factors and their related numerical weights used to recalculate an inmate's classification score are: . . . (b) Favorable behavior since last review. The categories below provide credits for six-month intervals. Credits shall be given when an inmate is within 30 days of a six-month interval. For an [AR], two six-month periods may be counted. When an inmate's status is interrupted during the period without inmate fault, the period shall be considered continuous. . . . (4) For each six-month period with an average or above performance in work, school or vocational program, two points shall be entered in Box 52 [of CDC Form 840]. . . . (B) Credits shall not be given to inmates who are not participating in a program (such as an inmate who was unassigned for medical reasons)."
Section 3375.4 was amended in 2002. Subdivision (a)(3)(B) is the current corresponding regulation, which states essentially the same as above. It appears the prison officials, as well as the parties, have referred to and applied the earlier worded regulations in Player's various appeals, including the present habeas petition. Although we refer to those original regulations in setting out the background and arguments, we will note any relevant changes in our discussion.
Description
In awarding work-time behavioral credits/points that affected inmate's classification score and impacted on his custody level and privileges within the prison system, Department of Corrections and Rehabilitation was required to award points for three six-month periods for which inmate's work status classification was interrupted without his fault or for which his work status was reinstated because he had been exonerated of wrongdoing that had removed him from his work status. DOCR's contrary interpretation of the period considered continuous for reclassification annual review was unreasonable and unfairly applied.
