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Kovash v. Guyer

Supreme Court of Montana

November 27, 2018

JONATHAN KOVASH, Petitioner,
v.
LYNN GUYER, Respondent.

          ORDER

         Jonathan 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 l(1)(c), MCA.

         Kovash 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.

         From 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 coats available.

         Pursuant 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).

         Kovash 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)).

         Kovash, 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.

         This 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.

         IT IS' ORDERED that Kovash's Petition for a Writ of Habeas Corpus is DENIED.

         The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record ...


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