Opinion
NO. 2016-CA-000871-MR
07-28-2017
MARCUS GREENE APPELLANT v. MERVIN HADDIX, WARDEN APPELLEE
BRIEFS FOR APPELLANT: Marcus Greene, pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Angela E. Cordery Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 16-CI-00078 OPINION
AFFIRMING
** ** ** ** **
BEFORE: J. LAMBERT, MAZE AND NICKELL, JUDGES. NICKELL, JUDGE: Marcus Greene, pro se, appeals from an order of the Oldham Circuit Court denying his petition for a declaration of rights. He claims a denial of due process. We affirm.
In July 2015, Internal Affairs Investigator Sgt. Jose Rodriguez investigated Greene at the Luther Luckett Correctional Complex. Sgt. Rodriguez reviewed several recorded telephone calls made by Greene to his wife and niece, some of which were converted to three-way calls involving unknown persons. After reviewing the calls, Sgt. Rodriguez concluded the conversations indicated Greene was discussing obtaining illegal drugs with the unknown persons. Sgt. Rodriguez prepared a Disciplinary Report alleging Greene had conspired with his spouse to "gain access to dangerous contraband for distribution in the Institution." According to the report, during one of the calls, Greene referred to "Reggie," "splickity," and "splitting," slang drug terms Sgt. Rodriguez had learned through his investigation. Greene was quoted as saying, ". . . they don't want Reggie . . . they just want splitting." Sgt. Rodriguez bolstered his investigation by referencing in his report an online definition of the term "Reggie" from the Urban Dictionary meaning "regular weed."
The report was investigated by Sgt. Paul Young who interviewed Greene about its content. Greene admitted knowing three-way calling violates prison rules. When Sgt. Young asked the identity of the unknown males in the conversation, Greene said he could not remember. Greene was charged with violating CPP 15.2(II)(C) Category VI-03, prohibiting Possession or Promotion of Dangerous Contraband. He was given a copy of the investigative report, and advised of his right to call witnesses and have an inmate legal aide present at his hearing.
Corrections Policies and Procedures. While identified in prison documentation as a violation of CPP "6-04," this activity is currently prohibited by CPP 15.2(II)(C) Category VI-03.
On November 3, 2015, an Adjustment Hearing was held. Greene denied intending to smuggle or distribute drugs within the prison. Sgt. Young prepared a Hearing Report stating his review of the audiotapes was consistent with information contained in Sgt. Rodriguez's written report. Sgt. Young found, during the telephone call, Greene said to another male on the phone, "they don't want Reggie, . . . they want splitting." He also found the male on the phone responded he would give money back if "it aint alright." Sgt. Young found Greene had committed the offense of Possession or Promotion of Dangerous Contraband as an inchoate offense, CPP 15.2 Category VI-03 and CPP 15.2(E). Greene was given a disciplinary penalty of 75 days in segregation and forfeiture of 180 days of good time credit. Greene filed an appeal to the prison warden who affirmed the disciplinary action.
On February 12, 2016, Greene petitioned for a declaration of rights under KRS 418.040 challenging the disciplinary action as a violation of due process. On April 19, 2016, the circuit court entered an order denying the petition. This appeal followed.
Kentucky Revised Statutes.
Prison discipline proceedings are not the equivalent of criminal prosecutions; "the full panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); Wilson v. Haney, 430 S.W.3d 254, 257-58 (Ky. App. 2014). In a prison disciplinary hearing, due process is satisfied when a prisoner receives three things: advance written notice of the charges; an opportunity to call witnesses and present a defense; and, a written statement by the factfinder detailing the evidence relied upon and the basis of the result. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985). Courts are charged only with review of such decisions and prison officials are afforded broad discretion. Appellate courts must affirm if there is "some evidence" supporting the charge. Hill, 472 U.S. 445, 449, 105 S.Ct. 2768, 2770, 86 L.Ed.2d 356 (1985). See also Smith v. O'Dea, 939 S.W.2d 353, 358 (Ky. App. 1997) (adopting "some evidence" standard). "[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56, 105 S.Ct. at 2774 (citations omitted). Even "meager" evidence has been found to satisfy this burden. Id., 472 U.S. at 457, 105 S.Ct. at 2775; Ramirez v. Nietzel, 424 S.W.3d 911, 917 (Ky. 2014). "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Hill, 472 U.S. at 455, 105 S.Ct. at 2774.
Greene contends the disciplinary action violated his substantive due process rights in violation of KRS 13A.130 and CPP 15.2 and 15.6. He argues the prison authorities' actions violated KRS 13A.130(1) because they had the effect of modifying, expanding and limiting relevant provisions of KRS 520.050(1) and CPP 15.6. Greene asserts he could not be disciplined for promoting contraband because there was insufficient evidence any contraband was "introduced into a detention facility or penitentiary" as required under KRS 520.050(1)(a). As such, KRS 13A.130 is not implicated.
While Greene asserts his claims are based on substantive due process, complaints involving prison disciplinary actions implicate procedural due process. See, e.g., White v. Boards-Bey, 426 S.W.3d 569, 573-74 (Ky. 2014) ("The right to due process has two categorical distinctions: procedural due process and substantive due process. The former ensures fair process when protected rights are abridged, while the latter provides protection against governmental interference with certain fundamental rights that are encompassed in the terms life, liberty, and property. Since Boards-Bey's punishment for the alleged violations resulted in the loss of 199 non-restorable good time credits, a protected liberty interest has been implicated. Thus, we must determine if Boards-Bey received the minimum requirements of procedural due process."). --------
First, Greene was found to have violated the inchoate version of the contraband offense. An inchoate offense does not require completion of all steps of the underlying offense. See, e.g., Smith, 939 S.W.2d at 355. Second, he incorrectly assumes a violation under the CPP turns on satisfaction of the statutory requirements for a criminal offense. As noted earlier, disciplinary proceedings do not rise to the level of criminal prosecutions and there is nothing in the prison policies requiring contraband to actually be introduced into the prison. See, e.g., Wolff, supra. Prison policies do not adopt KRS 520.050 for purposes of prison discipline. Rather, CPP 9.6(II) provides, "[a]nyone who promotes contraband or dangerous contraband may be subject to the administrative disciplinary procedures outlined in CPP 15.2 or may be prosecuted as provided in KRS 520.050 or 520.060." Prison disciplinary actions require only "some" evidence the inmate committed the offense. In this case, there was sufficient evidence to support Sgt. Young's decision, as set forth in his report based on Sgt. Rodriguez's Write-Up and Investigation Report, as well as his personal review of audiotaped telephone conversations.
Greene also contends prison authorities violated several sections of CPP 15.6 dealing with provision and use of documents in a disciplinary action. More specifically, he cites CPP 15.6 (II)(C)(4)(b)(3) which provides in pertinent part:
3) Upon completion of the investigation, the investigator shall:
. . .
(c) Provide the inmate with a copy of all documents to be used by the Adjustment Committee or Adjustment Officer unless the disclosure of those documents constitutes a threat to the safety and security of an inmate, the public, or the institution. The inmate is not entitled to documents or other evidence that is not submitted for the hearing. Documents include reports, photographs, tests, tape recordings or other written materials to be used as evidence.
. . .
He also cites CPP 15.6 (II)(D)(2)(c) which provides:(2) If the documents are not provided, a summary of the information contained in the documents shall be provided. The summary may be included in and consist of the disciplinary report, which shall be noted on Part I of the disciplinary report.
2. At the hearing the inmate shall be entitled to the following:
. . .
Greene asserts he was entitled to receive, but did not, "portions of the 'urbandictionary'" and audiotapes of the telephone conversations. However, he has not shown prison authorities violated the policy provisions on which he relies.c. Consideration of those documents or a summary of those documents provided to the inmate at least twenty-four (24) hours before the hearing. If the documents or the summary is not provided to the inmate, the reason for failure to make these documents available to him shall be made a part of the record of the proceedings.
First, the Urban Dictionary is an internet site—not a "document" as defined by the policies. The complete URL for the definition was included in the Write-Up and Investigation Report. There is no indication Greene requested, nor was denied, access to the site by prison authorities, nor that any documentation from the Urban Dictionary was presented to or used by Sgt. Young. See CPP 15.6 (II)(C)(4)(b)(3)(c). More importantly, the slang definitions allegedly contained in the Urban Dictionary were summarized in Sgt. Rodriguez's Disciplinary Report—consistent with CPP 15.6 (II)(C)(4)(b)(3)(c)(2)—and he stated in the report he was familiar with the slang terms from his investigative experience with Internal Affairs. Sgt. Young's report does not indicate his findings and conclusion were based on the reference to the Urban Dictionary definition.
Second, with respect to the audiotapes, the conversations were summarized in both the disciplinary report and Sgt. Young's hearing report. Sgt. Young stated he personally reviewed the audiotapes and found them to be consistent with the references in the disciplinary report. Thus, Greene has not shown prison authorities violated the provisions of the disciplinary policies or that he was prejudiced or deprived of due process by a failure to provide him with documents. Moreover, Greene received all the procedural due process required by Wolff. Consequently, the circuit court did not err in denying Greene's petition for a declaration of rights.
For the foregoing reasons, we affirm the order of the Oldham Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Marcus Greene, pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Angela E. Cordery
Justice and Public Safety Cabinet
Frankfort, Kentucky