Opinion
NO. 2013-CA-000673-MR
01-31-2014
JOEY W. GALLOWAY APPELLANT v. PHILIP PARKER AND TROY BELT APPELLEES
BRIEF FOR APPELLANT: Joey W. Galloway, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEES: Allison R. Brown Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL III, JUDGE
ACTION NO. 12-CI-00181
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. CLAYTON, JUDGE: Joey W. Galloway appeals from a Lyon Circuit Court order dismissing his petition for declaration of rights. Having reviewed the record and applicable law, we affirm.
While Galloway was incarcerated at the Kentucky State Penitentiary (KSP), he tested positive for the use of marijuana. A subsequent Internal Affairs investigation found that Galloway, along with three other inmates, was involved in smuggling marijuana onto the prison grounds. Galloway received a disciplinary report charging him with "possession or promoting of dangerous contraband." According to the report, the evidence against Galloway consisted of a confidential report to the adjustment committee chairman.
Following a hearing, the committee found Galloway guilty of the charge, based on the statement of a prison staff member, Dennis M. Yeager, that Galloway tested positive for the use of marijuana and on Galloway's own admission that he bought marijuana and smoked it. Galloway was sentenced to ninety days of disciplinary segregation with no loss of good-time credit. After his appeal to the Warden was denied, he filed a petition for declaratory judgment in the Lyon Circuit Court. The trial court dismissed the petition, holding that because Galloway was sentenced to disciplinary segregation and did not lose any good-time credits, he suffered no injury to a constitutionally-protected right. This appeal followed.
In order to prevail on a Fourteenth Amendment procedural due process claim, a party must establish: (1) that he enjoyed a protected "liberty" or "property" interest within the meaning of the Due Process Clause; and (2) that he was denied the process due to him under the circumstances. Marksberry v. Chandler, 126 S.W.3d 747, 749 (Ky. App. 2003) (internal citations omitted). "[D]isciplinary segregation typically does not implicate a liberty interest protected by the Due Process Clause itself because it is the sort of confinement an inmate can reasonably anticipate receiving." Id. at 749-50.
Galloway acknowledges that his conviction did not result in the direct loss of statutory good-time credits, but argues that he suffered the following collateral consequences that did implicate his due process rights: first, he may not obtain future meritorious and program educational credits; second, his custody classification was increased; and third, the conviction could impact his parole eligibility. We will address these in order.
First, Galloway's argument regarding the deprivation of future meritorious good-time credits does not have constitutional implications because "[t]he loss of the mere opportunity to earn good-time credit does not constitute a cognizable liberty interest." Id. at 753. On the other hand, educational good-time credit, "under limited circumstances, is a protected liberty interest entitled to due process protection." Richardson v. Rees, 283 S.W.3d 257, 262 (Ky. App. 2009) (superseded on other grounds by statute as stated in Roberts v. Thompson, 388 S.W.3d 519 (Ky. App. 2012)). This deprivation may occur when an inmate is denied statutorily-mandated educational credit that he or she has already earned. Richardson, 283 S.W.3d at 262-63. But Galloway was not deprived of any education credit he had already earned; any deprivation of a potential opportunity to earn such credit in the future does not implicate the due process clause because there is no constitutional right to participate in an educational program. "An inmate has no constitutional right to a specific educational or vocational program in prison[.] . . . It is well settled that an inmate has no constitutional right to be rehabilitated." Archer v. Reno, 877 F. Supp. 372, 377 (E.D. Ky. 1995) (internal citations omitted).
Second, "inmates do not have a constitutional right to a particular security classification or to be housed in a particular institution. These collateral consequences affect privileges accorded to inmates that do not implicate a protected liberty interest." Marksberry, 126 S.W.3d at 751. Thus, Galloway's argument regarding the impact of his conviction on his custody classification is without merit.
Third, as to the potential impact of the conviction on his parole eligibility, there is no protected liberty interest in parole to which inmates have a legitimate claim of entitlement. Belcher v. Kentucky Parole Bd., 917 S.W.2d 584, 587 (Ky. App. 1996). Rather, "parole is a matter of legislative grace or executive clemency." Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999). Indeed, our Supreme Court has stated that "so long as the conditions or the degree of confinement to which the prisoner is subjected do not exceed the sentence which was imposed and are not otherwise in violation of the Constitution, the due process clause of the Fourteenth Amendment does not subject an inmate's treatment by prison authorities to judicial oversight." Mahoney v. Carter, 938 S.W.2d 575, 576 (Ky. 1997).
Next, Galloway argues that the positive drug test and the confidential report, which he describes as unreliable, uncorroborated, vague and conclusory, did not constitute sufficient evidence to support his conviction. He contends that no marijuana was ever found in his actual or constructive possession, and denies admitting that he purchased marijuana. Our standard of review requires us to recognize that "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Webb v. Sharp, 223 S.W.3d 113, 117 (Ky. 2007) (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)). The minimum requirements of due process are met if "the findings of the disciplinary board are supported by some evidence of record." Id. at 118, citing Superintendent, Massachusetts Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). Under this standard, Galloway's positive drug test and his own admission that he bought marijuana and smoked it constituted more than adequate evidence to support his conviction.
He further argues that he was "ambushed" at the disciplinary hearing with the allegation that he had tested positive for marijuana use, because he had no prior notice that the positive drug test would be used as evidence against him. Galloway provides no legal support for the contention that an inmate must be given full disclosure of the evidence to be used at the disciplinary hearing. Even when the loss of good-time credit is at stake, due process requires only the following: (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 his defense; and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. Id. Galloway was afforded all three of these procedural safeguards. He also fails to explain how prior notification regarding the use of the drug test as evidence would have assisted his case.
Finally, he alleges an equal protection violation premised on the contention that his case was the first time an inmate's positive drug test was used to support a possession of contraband claim. Galloway cannot "make out a violation of his equal protection rights simply by showing that other inmates were treated differently." Newell v. Brown, 981 F.2d 880, 887 (6 Cir. 1992). He would have to show that he "was victimized because of some suspect classification, which is an essential element of an equal protection claim." Id. (quoting Booher v. United States Postal Service, 843 F.2d 943, 944 (6th Cir.1988)). Galloway has failed to show that he is a member of a protected class, or that his conviction was not rationally related to a legitimate state interest in controlling drug abuse among the prison population. See Hampton v. Hobbs, 106 F.3d 1281, 1286 (6 Cir. 1997)
For the foregoing reasons, the Lyon Circuit Court's order of dismissal of the petition is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Joey W. Galloway, pro se
Sandy Hook, Kentucky
BRIEF FOR APPELLEES: Allison R. Brown
Frankfort, Kentucky