COURTFILED 

## OF APPEALS 

## DIVISION 7I 2015 

### APR 21 

### M 9: 06 S TAT .. a ra r. 1 BY



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Matter of Personal Restraint Petition of JOSEPH KOPPENSTEIN, DIVISION II

Petitioner. No. 46864 - 641

UNPUBLISHED OPINION
JOHANSON, C.J. — Joseph Koppenstein seeks relief from personal restraint imposed 

### following aprison disciplinaryproceeding inwhich ahearing officerfound him guilty ofviolating WAC 137 -

25 - 030 (Category C – Level 1, infraction 610) ( unauthorized possession of a prescribed 

### medication greater than a single daily dose).1 He claims thatthe evidence does not supportthis infraction and asks that it be expunged. 

### We review prison disciplinary proceedings to determine whether the Department of Correction' s ( DOC) 

### action was so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding. In re Reismiller, 101 Wn.2d 291, 294, 678 P. 2d 323 ( 1984). In

1 The 

### hearing officer also found petitioner guilty ofviolating WAC 137 - 28-220( 1) ( infraction 328) and WAC 137 -

25 - 030 ( Category B – Level 2, infraction 556). He does not challenge these infractions.No. 46864 - 6 -II 

### doing so, we look to whether petitioner received the due process protections afforded him under Wolff v. McDonnell, 418 U.S. 539, 563 -65, 94 S. Ct. 2963, 41 L. Ed. 2d 935 ( 1974). These protections include: ( 1) advance written notice of the charged violations, (2) the opportunity to 

### present documentaryevidence and call witnesses when not unduly hazardous to institutional safety and correctional goals, and (3) awritten statement ofthe evidence relied on and the reasons for the 

### disciplinary action. Petitioner challenges only the third ofthese protections, claiming no evidence supported 

### the infraction. We affirm a department' s decision as long as there is any evidence in the record to support it. Superintendent, Massachusetts Corr. Inst., Walpole v. Hill,472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d 356 ( 1985); 

### In re Pers. Restraint ofJohnston, 109 Wn.2d 493, 497, 745 P.2d 864 ( 1987). 

### Here, the DOC contends thatthe evidence supporting the infraction consisted of 

### the reporting officer's report in which the officer stated that petitioner did not have a valid prescription for the three dicyclomine hydrochloride pills found in petitioner' s shirt pocket. 

### Petitioner argues thatthis is not true, that he had avalid prescription,that a daily dose is four pills,
and that Nurse Sheridan Roberts stated in his report, " The Offender does have a prescription for this medication." 

### Resp. Ex. 2, Attach. C. This court' s role is not to reweigh the evidence but ratherto determine if some evidence in 

### the record supports the hearing officer's decision. The only evidence supporting the infraction is the reporting officer' s statement that petitioner did not have a valid prescription. 

### But nothing in 

### the record explains the reporting officer's basis ofknowledge, especially in that he asked the nurse to 

### identify the pills and the nurse reported that petitioner had a prescription for the drugs. While 

### the evidentiary standard is highly deferential to the disciplinary process, a verifiable fact should 2No. 46864 - 6 -II

not be disregarded for a conjectural statement. 

### Certainly, this is not what our Supreme Court intended when it defined the evidentiary standard that would satisfy due process. Hill, 472 U.S. at 457. See Reismiller, 101 Wn.2d at 296 ( insufficient evidence because there was no reasonable
connection between the inmate and the evidence); see In re Hews, 99 Wn.2d 80, 88, 660 P.2d 263 1983) ( 

### ifpetitioner makes prima facie showing of actual prejudice but the record is insufficient to determine the merits ofhis claims, court should remand for a new 

### hearing). 2 

### Accordingly,we grantthis petition. The DOC may expunge petitioner' s infraction or grant petitioneranewhearing. Ifitholds a newhearing,the hearing officer should considerthe available evidence to decide ifin fact petitioner had avalid prescription and what constitutes a daily dose in deciding whether petitioner violated WAC 137 - 25 -030 (

### Category C —Level 1, infraction 610). 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed forpublic record in accordance with RCW 2.06.040, it is so ordered.

We concur:



### 2 We disagree with the DOC that any errorwas harmless simplybecause the sanction was imposed concurrentlywith his otherinfractions. There are more consequences than loss ofgoodtime. DOC Policy 320. 150. 3