Sec. 12.03.01.15. Disciplinary Proceeding Procedures — Preliminary Phase — Dismissing an Inmate Rule Violation Charged

A. A hearing officer may only elect to dismiss an inmate rule violation charged based on cause established under this regulation.

B. Time or Procedural. A hearing officer may dismiss an inmate rule violation charged if the defendant established that a time or procedural violation requiring dismissal of an inmate rule violation charged under this chapter has occurred and meets the requirements for a dismissal under §C of Regulation .03 of this chapter.

C. Lack of Evidence or Failure to Make a Prima Facie Case. After reviewing a report, an attachment, or other evidence submitted by the facility representative, if designated, or facility staff, the hearing officer may dismiss an inmate rule violation charged for lack of evidence if the hearing officer determines that the facts as stated in a report, an attachment, or other evidence considered in the light most favorable to the facility and inferences resulting from those facts do not support a finding that the defendant committed the inmate rule violation charged.

D. Technical Defect or Error.

(1) A non-evidentiary defect or error in drafting of either a defendant’s copy of the Notice of Inmate Rule Violation form or Notice of Inmate Disciplinary Hearing form may not be considered a cause under this regulation to support dismissal of an inmate rule violation charged.

(2) A possible non-evidentiary defect or error may include, but not be limited to, one or more of the following:

(a) An incorrect inmate rule violation charged;

(b) An incorrectly cited date or time reference;

(c) An incorrect inmate control or state identification number or name;

(d) A missing signature on any form;

(e) The absence of a shift supervisor or shift commander review; or

(f) A failure of service on the defendant.

(3) To correct the defect or error, the hearing officer shall inform the facility representative, if designated, or facility staff of the defect or error identified and the need for correction.

(4) After correction, the facility representative, if designated, or facility staff shall:

(a) Provide the defendant with notice consistent with §F of Regulation .05 of this chapter; and

(b) Schedule the defendant for an appearance before the hearing officer.

(5) The identification of a defect or error shall be considered good cause to suspend the inmate disciplinary process until the defect or error is corrected.

E. Failure to Serve the Notice of Inmate Rule Violation Form or Notice of Inmate Disciplinary Hearing Form.

(1) If raised during the preliminary review that the defendant did not receive service of the defendant’s copy of the Notice of Inmate Rule Violation form or Notice of Inmate Disciplinary Hearing form, the hearing officer shall determine whether the defendant received service.

(2) A hearing officer may rely on one or more of the following in order to determine whether staff complied with service requirements of this chapter:

(a) The defendant’s presentation regarding the claim of not being served a copy of the defendant’s Notice of Inmate Rule Violation form or Notice of Inmate Disciplinary Hearing form;

(b) The record of service as stated on the facility’s copy of the defendant’s Notice of Inmate Disciplinary Hearing form or Notice of Inmate Disciplinary Hearing form or Department data records;

(c) Testimony of staff serving the defendant with the defendant’s copy of the Notice of Inmate Rule Violation form or Notice of Inmate Disciplinary Hearing form; or

(d) Rebuttal presentation, if presented by the facility representative, if designated, or facility staff, to the defendant’s presentation under this regulation.

(3) The failure of the defendant to be served with the Notice of Inmate Rule Violation form or Notice of Inmate Disciplinary Hearing form prior to the defendant’s appearance before the hearing officer may not, under this regulation, be considered a cause to support the dismissal of an inmate rule violation charged.

(a) If the hearing officer determines that staff failed to meet service requirements, the hearing officer shall notify the facility representative, if designated, or facility staff of the non-compliance with service requirements and direct staff to comply service requirements.

(b) If the hearing officer determines that staff did comply with service requirements, the hearing officer shall proceed with the disciplinary proceeding.

(c) If the defendant waives the service process, the hearing officer shall proceed with the disciplinary proceeding.

(4) The failure of staff to serve the defendant with the Notice of Inmate Rule Violation form or Notice of Inmate Disciplinary Hearing form shall be considered good cause for the delay of a time or procedure requirement under the inmate disciplinary process.