Opinion
NO. 2015-CA-001738-MR
06-03-2016
KENNARD FRENCH APPELLANT v. STEVE HANEY, WARDEN; KENDALL DUNCAN, ADJUSTMENT OFFICER; LADONNA H. THOMPSON, COMMISSIONER; KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES
BRIEF FOR APPELLANT: Kennard French, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEE: Brenn O. Combs Justice & Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE
ACTION NO. 15-CI-02828 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, J. LAMBERT, AND NICKELL, JUDGES. DIXON, JUDGE: Kennard French (French) brings this pro se appeal of an order of the Fayette Circuit Court denying his petition for a declaration of rights. He argues that the court abused its discretion when it found he had failed to a state claim upon which relief could be granted and that he had failed to exhaust his administrative remedies. After a careful review of the record and the applicable law, we affirm.
On April 23, 2015, Captain Eric Sizemore (Captain Sizemore) was reviewing security camera footage. He saw inmate French with the light from a cell phone in his right hand. Captain Sizemore also stated that the cell phone lit up twice more on the security camera, and that the camera caught the face of the cell phone. French later denied having a cell phone. He was charged with "possession or promoting of dangerous contraband" under CPP 15.2(II)(C)(VI)(3).
Kentucky Correctional Policies and Procedures
On April 24, 2015, a hearing was held over the matter. Captain Sizemore testified that the events happened as stated in his report. French testified and again denied having a cell phone. Two other inmates, Larry Dickey and Timothy Garner, also testified that French did not have a cell phone. Adjustment Officer Duncan Kendall ("AO") found French guilty, citing Captain Sizemore's testimony and the security camera footage. As a result, French lost 180 days of statutory good time credit, had his phone usage restricted for 180 days and was placed in disciplinary segregation for 90 days.
French appealed this decision to Warden Steve Haney arguing that the evidence against him was insufficient to support a conviction. Thereafter French completed his second appeal to Warden Haney, arguing that his prison legal aide was forcefully removed from the hearing without cause and that he was denied the opportunity to view a screen shot of the security camera footage.
Warden Haney received French's first appeal on May 8, 2015, and denied it on May 22, 2015. French completed a second appeal on May 19, 2015, which the warden did not timely receive. French then filed a petition for a declaration of rights in Fayette Circuit Court on August 3, 2015. On October 7, 2015, the circuit court dismissed French's petition on the grounds that French had failed to state a claim and that French had failed to exhaust his administrative remedies. This appeal follows.
French's sole argument on appeal is that the circuit court erred when it found that he had failed to state a claim upon which relief could be granted. In French's petition for a declaration of rights before the circuit court, he made two arguments: 1) the AO should have provided him with a still photograph taken from the prison's security camera, showing that he had a cell phone; and 2) the AO's findings were not supported by sufficient evidence.
French only argues that the circuit court erred when it found that he had failed to state a claim. However, the circuit court also found that French had failed to exhaust his administrative remedies. French argues separately that the circuit court failed to construe his pleadings liberally, because he is pro se. A court must "liberally construe pro se pleadings to extract the appellant's intent and bring about a full adjudication of the relevant issues[.]" Taylor v. Commonwealth, 354 S.W.3d 592, 594 (Ky. App. 2011). We have done so on appeal.
"Procedural and evidentiary standards that satisfy due process are markedly dissimilar in the prison disciplinary context than those mandated in a criminal prosecution." Wilson v. Haney, 430 S.W.3d 254, 257-58 (Ky. App. 2014). Procedural due process in the prison disciplinary context requires: "(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Superintendent, Mass. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985). These due process requirements are generally met "if some evidence supports the decision by the prison disciplinary board." Id., 472 U.S. at 455, 105 S. Ct. at 2769.
Additionally, our Supreme Court has recently affirmed that "determining whether 'some evidence' is present in the record does not 'require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence[]'" and "[e]ven 'meager' evidence will suffice." Ramirez v. Nietzel, 424 S.W.3d 911, 916-17 (Ky. 2014) (quoting Walpole, 472 U.S. at 455-56; 57, 105 S.Ct. at 2774). "If 'some evidence' is satisfied, the fear of arbitrary government action is removed and no due-process violation is found." Id. at 917.
KRS 454.415 provides in pertinent part that
Kentucky Revised Statutes.
(1) No action shall be brought by or on behalf of an inmate, with respect to:
(a) An inmate disciplinary proceeding;
(b) Challenges to a sentence calculation;
(c) Challenges to custody credit; or
(d) A conditions-of-confinement issue; until administrative remedies as set forth in the policies and procedures of the Department of Corrections, county jail, or other local or regional correctional facility are exhausted.
...(Emphasis added). The Justice & Public Safety Cabinet argues that French failed to exhaust administrative remedies in the present case because he did not timely file his appeal to the warden. CPP 15.6(II)(F)(3) provides that an "inmate has fifteen (15) days after the decision to detail the reasons for the appeal."
(4) A court shall dismiss a civil action brought by an inmate for any of the reasons set out in subsection (1) of this section if the inmate has not exhausted administrative remedies[.]
French filed two different appeals to the Warden in this case. In French's first appeal, he asserted that the AO failed to make adequate written findings of fact. This appeal was timely filed under CPP 15.6(II)(F)(3). However, French untimely completed his second appeal to Warden Haney on May 19, 2015, in which he argued 1) that he was denied due process when prison officials did not allow him to view photographs of him holding a cell phone; and 2) that the AO forcefully removed his legal aide from the hearing without cause. The Warden's denial of French's first appeal apparently did not encompass this second appeal, because the second appeal was stamped "RECIEVED" by the warden's office on May 26, 2015, four days after the Warden had denied French's first appeal.
The hearing over this matter took place on April 24, 2015. French completed his first appeal on May 4, 2015, and it was received by Warden Haney on May 8, 2015. This appeal was timely because Warden Haney received it one day prior to the expiration of his 15-day period under CPP 15.6(II)(F)(3).
French's second appeal was dated May 19, 2015. This appeal was untimely, as French completed it ten days after the expiration of his 15-day period under CPP 15.6(II)(F)(3).
French has not argued equitable tolling, and the record is devoid of any proof that French timely submitted his second appeal to the Warden. Even if he had argued equitable tolling, this Court has recently held that equitable tolling does not apply to petitions for declarations of rights in prison. Anglin v. Justice & Pub. Safety Cabinet, 480 S.W.3d 291, 293 (Ky. App. 2015). --------
Compliance with the prison appellate process in CPP 15.6(II)(F) is mandatory under KRS 454.415(1)(d), and the failure to comply with KRS 454.415(1)(d) must result in dismissal in the circuit court. KRS 454.415(4). See Adams v. Meko, 341 S.W.3d 600, 603 n.4 (Ky. App. 2011) ("Appellant also raises a number of other issues that were not presented at the disciplinary hearing and/or to the circuit court. Therefore, they are unpreserved for our review and we will address only those matters properly raised below."). See also Houston v. Fletcher, 193 S.W.3d 276, 278 (Ky. App. 2006) (affirming the circuit court's dismissal for noncompliance with KRS 454.415(1)). The circuit court did not err in concluding that French had failed to exhaust his administrative remedies as to the two issues included in French's second appeal to the Warden, and so we are unable to review the merits of those claims.
Because French's first appeal was timely filed, however, any arguments presented in French's first appeal to the warden are preserved. The only argument that French presented in this appeal was that the AO's findings of fact were insufficient. French did not make this argument specifically in his petition for a declaration of rights in the circuit court, but instead briefly argued that the evidence against him was insufficient under the "some evidence" standard for prison disciplinary proceedings. Because these arguments involve similar considerations, and because French is pro se, we will address these arguments now. See Taylor, supra. As we hold that the AO in French's case did make sufficient findings of fact, however, any error committed by the circuit court in finding that he had failed to exhaust his administrative remedies in this regard was harmless.
CPP 15.6(II)(D)(3)(d) provides that "[t]he [AO's] decision shall have specific findings of fact. The findings may be based on facts contained in the employee's report. The findings shall explicitly state which facts were determined to be true if facts in the employee's report are relied upon." French argues that the AO violated this provision when it did not state which facts in the report were relied upon.
The AO's findings from French's disciplinary proceedings state, in part, as follows:
In the report from Captain Sizemore, he stated that he reviewed security camera footage, and that while doing so, he witnessed inmate Kennar[d] French 214333 walk across the cube across from his back to his own cube, and that in the footage it is possible to see the light from a cell phone in his right hand. Further that the cell phone screen lights up while he is in the other cube, and as he walks to the cube he is assigned, the phone in his hand lights up as it shines on his leg, reflecting that as inmate French goes into his cube, that reflections are visible reflecting on the wall from the light the phone gives off. Captain Sizemore confirmed the report as true and accurate on the record during the hearing.Captain Sizemore testified at the hearing that he saw French with a cell phone. The AO wrote in his findings that he reviewed the camera footage, and that he believed that the incident occurred as Sizemore stated. It is true that French denied having a cell phone, and that two other inmates denied that French had a cell phone. However, "it is the exclusive province of the administrative trier of fact to pass upon the credibility of witnesses, and the weight of the evidence[.]" 500 Associates, Inc. v. Nat. Res. & Envtl. Prot. Cabinet, 204 S.W.3d 121, 132 (Ky. App. 2006) (quoting Bowling v. Natural Resources & Environmental Protection Cabinet, 891 S.W.2d 406, 410 (Ky. App. 1995)).
This Court has previously held that
The Adjustment Committee's findings ... were "[t]he Committee believes The Officer's Report to be correct...." This incorporates the facts by reference and becomes the written findings of the Adjustment Committee. This procedure (not rewriting the findings) satisfies the requirements of Wolff that there be written findings as to the evidence relied on and the reasons for the disciplinary action.Yates v. Fletcher, 120 S.W.3d 728, 731 (Ky. App. 2003). Contrary to French's allegations in his administrative appeal, the AO actually did specifically state which facts on which he based his decision; the AO stated that he relied on Captain Sizemore's report and the video evidence. Furthermore, the findings of the AO are supported by "some evidence" as required by due process in the context of prison disciplinary actions. See Smith v. O'Dea, 939 S.W.2d 353, 357 (Ky. App. 1997). Because the AO's findings of fact were sufficient, any error in determining that French had not exhausted his administrative remedies as to this issue was harmless.
In sum, we hold that the circuit court did not err when it found that French had failed to exhaust his administrative remedies as to the two issues contained in French's second appeal to the warden, as French's second appeal was untimely filed. We also hold that French had exhausted his administrative remedies in his first appeal to the warden, because that appeal was timely filed. However, because the AO's findings of fact were sufficient under Yates, supra, any error by the circuit court in this regard was harmless.
The Fayette Circuit Court's order dismissing French's prison disciplinary action is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kennard French, Pro Se
West Liberty, Kentucky BRIEF FOR APPELLEE: Brenn O. Combs
Justice & Public Safety Cabinet
Frankfort, Kentucky