Kovash has filed a petition for a writ of habeas corpus and
has included several attachments. He requests relief from his
September disciplinary sanction and that this Court order the
Department of Corrections (DOC) "to STRIKE the illegal
'write-up' from this Petitioner[']s
records." (Emphasis in original.) We amend the caption
to indicate the current prison Warden. Section 46-22-20
explains that his incarceration is illegal because of this
"write-up" while in Montana State Prison (MSP).
Kovash cites to DOC Policy 3.4.1 for Institutional
Discipline. He states that he could not prepare for the
hearing because it re-scheduled a day earlier. He contends
that his due process rights have been violated because his
hearing was not timely and he had no notice about any
penalties or. sanctions prior to his disciplinary hearing. He
concludes that "[t]hese combined gross 'breaks'
of basic procedure demand" this Court to strike his
disciplinary conviction from his records.
the attached documents, Kovash was cited for a major
violation and had a disciplinary hearing on September 6,
2018. Kovash's major violation was for possession of
narcotic paraphernalia. He contends that it was not his coat
where a syringe was found after a pat search and that inmates
in the pod were sharing coats because there were only four
to DOC Policy 3.4.1, a Disciplinary Infraction Report may be
used when "an offense cannot be handled by informal
resolution . . . ." DOC Policy 3.4.1 III.A.l.c.2. A
major violation or infraction may be resolved through either
"a hearing or Waiver of a Hearing/Agreement . . ."
and "[a]n inmate may be placed in disciplinary detention
for a major infraction and felonies may be prosecuted
[sic-for] it." 3.4.1 III. A.l.c.2.a). (2).
has not demonstrated that his due process rights have been
violated here. This Court has stated before that due process
is a flexible concept. McDermott v. McDonald, 2001
MT 89, ¶ 10, 305 Mont. 166, 24 P.3d 200. "Thus, the
process due in any given case varies according to the factual
circumstances of the case, the nature of the interests at
stake, and the risk of making an erroneous decision."
McDermott, ¶ 10 (referring to Sage v.
Gamble 279 Mont. 459, 465, 929 P.2d 822, 825 (1996)).
like other inmates, would have received a copy of the current
MSP Disciplinary Handbook during the orientation process at
the Martz Diagnostic Intake Unit. DOC Policy 3.4.1 III. H. 2.
After Kovash's arrival at prison, he had notice of the
possible punishments or sanctions, which could be imposed for
an infraction. Following his write-up, Kovash was given
notice of hearing in the Disciplinary Infraction Report,
which includes a notice for the hearing at the bottom of the
page. DOC Policy 3.4.1 III.A. Kovash must receive this report
within 24 hours of the incident. DOC Policy 3.4.1 IILA.3.c.
Kovash had an opportunity to appear and present his side at
the September 6, 2018 hearing, and he received a copy of the
Disciplinary Hearing Decision, documenting this ruling.
Concerning Kovash's claim about the hearing being
rescheduled, it had to occur within three days of the
incident on September 3, 2018. DOC Policy 3.4.1. IILA.3.c. On
September 6, 2018, the Disciplinary Hearing Officer (DHO)
relied on the Disciplinary Infraction Report and a photograph
to determine Kovash's guilt. The DHO imposed twenty days
of detention and credited Kovash with three days. DOC Policy
3.4.1. III.A.3 .d. Kovash has exercised his right under this
policy and appealed the decision on October 12, 2018. DOC
Policy 3.4.1. III.F.l. The DHO's decision was affirmed.
Court has little authority over DOC prison officials and
DOC's management of inmates. "Thus, prison officials
are accorded 'wide ranging deference' in adopting and
executing policies to preserve internal order and discipline
among the inmates, including 'prophylactic and
preventative measures intended to reduce the incidence'
of breaches of prison order." Jellison v.
Mahoney, 1999 MT 217, ¶ 12, 295 Mont. 540, 986 P.2d
1089 (citation omitted). This Court cannot strike
Kovash's write-up from his record. Moreover, the remedy
of habeas corpus is not applicable to alleged constitutional
violations or conditions of confinement. Gates v.
Missoula Co. Comm'rs, 235 Mont. 261, 262, 766 P.2d
884, 884-85 (1988). Kovash has not demonstrated that he is
illegally incarcerated, and Kovash is entitled to habeas
corpus relief. Section 46-22-101(1), MCA.
IS' ORDERED that Kovash's Petition for a Writ of
Habeas Corpus is DENIED.
Clerk of the Supreme Court is directed to provide a copy of
this Order to counsel of record ...