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Bromlie v. Guyer

Supreme Court of Montana

May 8, 2019

NICHOLAS WILLIAM BROMLIE, Petitioner,
v.
LYNN GUYER, Respondent.

          ORDER

         Self-represented Petitioner Nicholas William Bromlie has filed a petition for a writ of habeas corpus, seeking relief from the rescission of his parole based on the prison's handling of his misconduct and write-up. In compliance with this Court's February 21, 2019 Order, the Special Assistant Attorney General for the Montana Department of Corrections (Department or DOC) has filed a response to Bromlie's petition.

         Bromlie is currently serving two, concurrent five-year terms for felony criminal possession of dangerous drugs imposed in 2015 in the First Judicial District Court, Lewis and Clark County, and the Second Judicial District Court, Butte-Silver Bow County. Both District Courts recommended placement at NEXUS treatment center followed by a prerelease center.

         The Department provides Bromlie's history in detail and states that on March 31, 2016, Bromlie was placed at the NEXUS treatment facility in Lewistown, Montana. While at NEXUS, Bromlie was sanctioned for rule violations in July, and he received a warning that any additional rule violations would result in his termination from the program. In August 2016, Bromlie was terminated from NEXUS after four more rule violations. On August 25, 2016, a Probation and Parole Officer requested that Bromlie be placed at the Montana State Prison (MSP). On October 14, 2016, Bromlie was admitted to MSP.

         Bromlie became eligible for parole in December 2016. He first appeared before the Board on April 30, 2017, and the Board of Pardons and Parole (Board) granted him parole if he completed treatment in MSP's Intensive Treatment Unit (CD-ITU) and a prerelease center. On May 25, 2017, Bromlie was admitted to Housing Unit A where CD-ITU was then located to begin his treatment. Bromlie lasted about a month in CD-ITU because of his misconduct and was terminated for disciplinary reasons on June 27, 2017. Bromlie was allowed to return and to begin CD-ITU on October 19, 2017. On December 6, 2017, Bromlie was removed again from CD-ITU for disciplinary reasons.

         Bromlie received another write-up on February 14, 2018. The Board notified him of an upcoming rescission hearing based on his misconduct. On April 11, 2018, the Board rescinded Bromlie's conditional parole because of his rule infractions and again granted Bromlie's conditional parole contingent on his completion of CD-ITU. On June 26, 2018, Bromlie was again admitted to CD-ITU, which at that time had been re-located to the Montana State Correctional Treatment Center (MSCTC).

         On Thursday, August 23, 2018-less than two months after Bromlie was readmitted to CD-ITU-an inmate at the MSCTC reported to correctional officers that Bromlie had physically assaulted him the day before by grabbing his genitalia. Correctional officers interviewed Bromlie, the alleged victim, and a witness. On that day, Bromlie was escorted to Prehearing Confinement, pending an investigation of a possible Prison Rape Elimination Act (PREA) incident. Bromlie was held for seventy-two hours in accordance with MSP's policy, followed by another seventy-two hours of confinement, without a written notice of the continuance being served on Bromlie. On August 29, 2018, Bromlie was released from Prehearing Confinement and admitted to Housing Unit B pending the outcome of the investigation.

         The PREA investigation began on August 24, 2018. In September and October, the assigned correctional officer interviewed the alleged victim, two witnesses, and Bromlie. On November 15, 2018, Bromlie returned to MSCTC to complete the treatment, which was interrupted by the alleged PREA incident. The assigned correctional officer continued his investigation. The correctional officer completed his investigative report and submitted it for administrative review on November 23, 2018. Bromlie completed CD-ITU the first week of December 2018, and he was admitted back into Housing Unit B.

         In the investigative report, the correctional officer concluded that the alleged victim's PREA complaint was substantiated by a preponderance of the evidence based on the video and statements by the victim and original witness. The officer found that Bromlie had committed two Major Rule Infractions: #4204 - "Making sexual proposals, threats, or harassing remarks, kissing, or inappropriate touching, directly or through clothing of the genitalia, anus, groin, breast, inner thigh, or buttocks[;]" and #4217 - "Lying or providing a false statement to a staff member." MSP Operational Procedure 3.4.1, Institutional Discipline, Attach. A. The officer cited Bromlie with these infractions on December 4, 2018, and Bromlie was served with the infraction report and notice of hearing a week later, on December 11, 2018.

         Bromlie appeared at his hearing. The officer presiding over the disciplinary hearing issued a decision finding that Bromlie was guilty of the two infractions, and the officer imposed eleven days of cell restriction. Bromlie appealed, and the disciplinary hearing decision was affirmed on December 31, 2018. On January 8, 2019, the Board gave Bromlie notice of an upcoming rescission hearing based on his writeups for misconduct. Bromlie appeared before the Board on February 13, 2019. After hearing from Bromlie, the Board rescinded Bromlie's conditional parole based on his misconduct. The Board, however, agreed to give Bromlie one more chance in granting him parole again with the same previously imposed conditions. The Board acknowledged that Bromlie had completed CD-ITU in December 2018, and required 180 days of clear conduct before his release. After some discussion, the Board clarified with Bromlie that the 180 days started from the date of the completed investigative report and not the date of infractions.

         Bromlie asserts that his due process rights have been violated through his latest disciplinary process. He requests that the writeup be dismissed or vacated because of DOC's and MSP's failure to adhere to its policies and procedures concerning Prehearing Confinement and investigation. He states that within twenty-four hours of Prehearing Confinement, he should be personally served with a Classification Review Notification Form. He further states that "inmates must be served within 72 hours any intention of an [extension] of investigation in writing[.]" He states that he did not receive anything indicating that he still was under investigation. Instead, he adds that he was returned to MSCTC on November 15, 2018, and that he was told by an Officer-"No More Horseplay!" He reiterates that he completed CD-ITU and that on December 11, 2018, he was served with a writeup for #4204, some 116 days later.

         The Department responds that Bromlie's petition should be denied and dismissed. The Department reframes the issue as whether the failure to serve Bromlie during his Prehearing Confinement with notices required by prison operational procedures or the interval of 103 days between Bromlie's misconduct and disciplinary hearing caused his conditional parole to be rescinded illegally. The Department counters that Bromlie's due process rights have not been violated and that the Board's rescission of his parole was correct in light of Bromlie's conduct and MSP's administrative policy.

         First, the Department addresses Bromlie's claim that he did not personally receive Notification of Classification Review to continue his Prehearing Confinement another seventy-two hours in August 2018. The Department explains that while MSP did not conform to its policy in giving Bromlie notice, no constitutional violation exists. MSP Operational Procedure 3.4.1 III.A.3.c. The Department cites to case law from the United States Supreme Court where the high court recognized that certain liberty interests are created and eventually protected by the Due Process Clause, "[b]ut these interests will generally be limited to freedom from restraint which," ... "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995). See also Jellison v. Mahoney, 1999 MT 217, ¶ 9, 295 Mont. 540, 986 P.2d 1089. The Department points out that Bromlie knew why he was confined based on his immediate interview with correctional officers on August 23, 2018, and that Bromlie's six days of discipline did not impose an atypical and significant hardship here. The Department maintains that Bromlie's confinement without Classification Review Notification does not rise to a violation of due process rights.

         Second, the Department disputes Bromlie's contention that the length of the investigation violated his due process rights. The Department points to the attached MSP Operational Procedure for Institutional Discipline which provides that "[information discovered during the investigative process may require additional time." MSP Operational Procedure 3.4.1 III.A.l.c.2.d). The Department explains that Bromlie's claim fails for two reasons: (1) MSP's policy does not create a constitutionally protected interest; and (2) even if the policy were to rise to that level, due process is not violated because no actual prejudice was caused. U.S. v. Loud Hawk, 816 F.2d 1323-24 (9th Cir. 1987) ("For the defendants to prevail under the Due Process Clause they had to show actual prejudice.") (internal citations omitted). Here, the Department adds that Bromlie has failed to show how the length of the investigation or any delay prejudiced him while incarcerated.

         Third, the Department states that the Board's second rescission of Bromlie's conditional parole and imposing a new conditional parole are lawful. The Department points to our case law where we have determined previously that the Board has broad authority and discretion to decide an inmate's parole. McDermott v. McDonald,2001 MT 89, ¶ 25, 305 Mont. 166, 24 P.3d 200. The Department reiterates that the Board may rescind an inmate's parole based on its findings during a hearing. Admin. R. M. 20.25.601(1) (2016). The Department states that while Bromlie expected a different outcome, his prior behavior does not support that. From a review of Bromlie's disciplinary infractions since April 2018, the Department highlights that the Board based its decision to rescind on his misconduct ...


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