Here, corrections officers found contraband in a work area common to Brouillard and a number of other inmates. The record is unclear as to exactly how many other inmates worked in or had access to that area. But more than a few apparently did. The evidence also showed that other inmates used the same computer as Brouillard on a daily basis. There is no evidence Brouillard somehow acted in concert with any of the other inmates with respect to the contraband. From that evidence alone, the pornography and the betting slips could not be attributed to Brouillard any more than to one or more of the other inmates using the computer or having access to that work area. The testimony that Brouillard had a password to the computer really doesn't advance the prison's position. The fact is presented in just that sort of disconnected, abstract way. There was no evidence that the other inmates lacked passwords or that only Brouillard (or someone with this password) could have created the betting slips or accessed and copied the pornography. In that way, the password is comparable to the informant in Broussard—the evidence lacks sufficient foundation to implicate the inmate in the charged violation. In short, the evidence against Brouillard fails to display adequate clarity and specificity to support the violations, even under the some-evidence standard. The evidence placed Brouillard and a number of other inmates in proximity to the contraband. But imposing liability on Brouillard based on that sort of shared proximity reflects arbitrary decisionmaking that cannot be squared with the constitutional process due inmates as outlined in Hill.
The constitutional defect may be illustrated through a rhetorical foil counsel for the prison presented on appeal: “If Brouillard's arguments are accepted, any contraband found in a prison dormitory setting or work area would be insufficient to support the imposition of discipline in a prison setting.” Prison officials, then, seem to believe that if they find contraband in the common area of a dormitory, they can then select one inmate among the residents housed there and prove a disciplinary violation against him or her based on nothing more. Select how? Maybe by lot or birthday nearest the date of the offense or general incorrigibility. It could be the prison officials believe they can charge all of the residents with possession of the contraband. Either way, that sounds arbitrary, perhaps more strikingly so than the disciplinary action taken against Brouillard. But neither comports with due process.[Update: the prison did not file a PR and the mandate issued on Nov. 1, 2012.]