Opinion
NO. 2019-CA-000865-MR
05-22-2020
KEWAN HACKETT APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE
BRIEFS FOR APPELLANT: Kewan Hackett, pro se Beattyville, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 18-CI-00739 OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES. LAMBERT, JUDGE: Kewan Hackett, proceeding pro se, has appealed from the order of the Oldham Circuit Court dismissing his petition for declaration of rights related to his prison disciplinary action. We affirm.
On March 22, 2018, Hackett was an inmate at the Luther Luckett Correctional Complex (LLCC). That night, Correctional Officer Lt. Christopher Weick conducted a strip search of Hackett while Lt. Nathan Vincent and Sgt. Jeremy Smith were present.
During the course of the search Inmate Hackett attempted to destroy evidence by removing it from his underwear and placing it in his mouth in an attempt to swallow it. Inmate Hackett then refused multiple directives to spit the contraband out and resisted when I was attempting to restrain him. O.C. [pepper spray] was deployed and a drive stun from the x2 taser was utilized in order to bring Inmate Hackett into compliance.Lt. Weick recovered a small bag of a green, leafy substance that was later determined to be synthetic marijuana from Hackett. The contraband was photographed and placed into the evidence vault.
An investigation by Investigating Officer Lindsay Melton followed, and Hackett was charged with two offenses: tampering with physical evidence or hindering investigation (Disciplinary Report No. LLCC-2018-01145) and possession or promoting of dangerous contraband (Disciplinary Report No. LLCC-2018-01146). Officer Melton viewed the video recording of the incident and spoke to the officers present, who confirmed the report about Hackett's actions during the search to be true. Regarding the possession charge, she reported:
I watched the video of this incident and it shows Lieutenant Vincent and Lieutenant Weick place inmate Hackett in the floor office closet for a search. It then shows Lieutenant Vincent and Lieutenant Weick discharge OC spray in to the closet where inmate Hackett is. Lieutenant Vincent confirmed that this incident took place. I spoke to Lieutenant Nathan Vincent. I asked
Lieutenant Vincent who took possession of the suspected synthetic marijuana and he told me Lieutenant Weick did. I spoke to Lieutenant Weick. I asked Lieutenant Weick if he took possession of the synthetic marijuana and he said "Yes I did." I spoke to Sergeant Lewis in internal affairs and she told me that the substance tested positive for synthetic marijuana.
An adjustment committee hearing was held on May 30, 2018. Hackett, with the help of his legal aide, entered a guilty plea to the tampering with physical evidence charge and received a penalty of 15 days of disciplinary segregation, the forfeiture of 90 good-time days, and restitution in the amount of $3.45 for the OC spray. He did not appeal that ruling. As to the possession charge, Hackett pled not guilty because of the lack of a field test and correctional experience. He asked for an amended charge or dismissal based upon due process violations. The adjustment officer found that Lt. Vincent had asked Hackett prior to the strip search whether "he had anything on his person that he needed to be aware of" to which Hackett answered, "No." The adjustment officer also considered Lt. Weick's statements to the investigating officer that he had taken possession of the substance and Sgt. Lewis's statement to the investigating officer that the substance obtained from Hackett had tested positive for synthetic marijuana. The adjustment officer found that these facts supported the charge and imposed a penalty of 15 days of disciplinary segregation suspended for 30 days and the forfeiture of 90 good-time days. The Warden ultimately denied Hackett's appeal on June 5, 2018, because "[t]he due process requirements appear to be in order. The evidence is sufficient in order to establish a finding of guilt."
On December 26, 2018, Hackett filed a petition for declaration of rights pursuant to Kentucky Revised Statutes (KRS) 418.040 with the Oldham Circuit Court. He named the Kentucky Department of Corrections (KDOC); KDOC Commissioner James Erwin; Scott Jordan, the Warden of LLCC; and several corrections officers at LLCC as respondents. In the petition, Hackett claimed that the officers used excessive force in the strip search and failed to follow proper protocol in handling the contraband. He requested that the adjustment committee's decision be vacated and that his good-time credits be restored to him.
The respondents moved to dismiss Hackett's petition, stating that Hackett had failed to exhaust his administrative remedies with respect to the tampering with physical evidence conviction and that his due process rights had not been violated with respect to the possession conviction. Hackett had received advance written notice of the charges, the right to call witnesses and introduce documentary evidence in his defense, and a written statement by the factfinder of the evidence relied upon. And they argued that there was "some evidence" in the record to support the disciplinary body's decision. Hackett's primary argument had to do with the testing of the substance the corrections officers recovered. The respondents pointed to the lengths Hackett went to in order to hide the substance from the officers, including removing it from his underwear, putting it in his mouth, and refusing to spit it out despite the officers' directives. These surrounding circumstances regarding Hackett's reaction, they argued, met the "some evidence" standard. In his response, Hackett conceded that he could not seek review of the tampering with evidence conviction, but he continued to attack the chain of custody for the substance the officers recovered from him during the search as to the possession conviction.
On March 14, 2019, the circuit court granted the respondents' motion and dismissed Hackett's petition. It found that he failed to exhaust his administrative remedies for the tampering with physical evidence charge and that he had received due process for the possession charge. "[T]he surrounding circumstances of Petitioner's attempts to conceal the substance by removing it from his underwear, placing it in his mouth and attempting to swallow it while refusing directives to spit it [out] is 'some evidence.'" This appeal now follows.
In the body of his notice of appeal, Hackett named "respondents" as the appellee with the direction to "See attached order." In the caption for both the notice of appeal and the order on appeal, the respondents are listed as "Kentucky Department of Corrections, et al.," which means that the warden - a necessary party - is not expressly listed as an appellee in this appeal. See Ford v. Frailley, No. 2007-CA-002323-MR, 2009 WL 484996, at *2 (Ky. App. Feb. 27, 2009) ("Having examined the statutes, regulations, and the properly adopted policies of the Department of Corrections, as well as the relief Ford seeks, we conclude that Warden Webb is a necessary and indispensable party to this appeal. In his absence, this Court is without jurisdiction to address the merits, and the case must be dismissed."). However, because we are affirming the circuit court's order and because the warden was listed as a respondent in the petition, we shall consider the merits of the appeal, despite the question that there may be a lack of jurisdiction due to the defect in the notice of appeal. --------
Prison discipline proceedings are not equivalent to criminal prosecutions and "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) (citation omitted). Due process in prison disciplinary cases is satisfied when a prisoner receives: (1) advance written notice of the charges; (2) an opportunity to call witnesses and present a defense; and (3) a written statement by the factfinder detailing the evidence relied upon and the basis of the result. Superintendent, Mass. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356 (1985). Courts are only permitted to review such decisions, and prison officials are afforded broad discretion. An appellate court must affirm if there is "some evidence" supporting the charge. Id., 472 U.S. at 455, 105 S. Ct. at 2774. See also Smith v. O'Dea, 939 S.W.2d 353, 357-58 (Ky. App. 1997) (adopting federal standards in prison disciplinary actions). "[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 meet 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.
In his brief, Hackett continues to argue that there was no evidentiary basis to sustain the possession conviction because of the lack of reliability of the field testing and the broken chain of evidence. Therefore, he asserts that the "some evidence" standard had not been met. He relies upon the Supreme Court of Kentucky's decision in Webb v. Sharp, 223 S.W.3d 113 (Ky. 2007), to support his argument. However, appellee points out that Hackett failed to address whether "some evidence" supported his conviction outside of the field test results as Webb went on to do. See id. at 120 ("We must now consider whether those facts, without consideration of the field tests, are sufficient to meet the some evidence standard."). We agree with appellee that such evidence existed in this case.
In Webb, the Supreme Court considered the actions of the prisoners who had been convicted of possession charges and found these actions constituted "some evidence" to support their convictions:
In addition to the officers' impressions as to the nature of the substance recovered, the hearing officer heard evidence as to the way the inmate reacted when the substance was discovered. In each case the inmate attempted to conceal the substance. In all three of the incidents, the inmates went to great lengths to destroy the substance either by flushing it down the toilet or by swallowing it. In fact, in two of the incidents the inmates
openly scuffled with the officers in an attempt to prevent the officers from recovering the substance. Finally, in each of the three incidents involving marijuana, the inmates elected not to testify or assert that the substance was not what the officers believed it to be. As a result, the inmates neither denied ownership nor challenged the nature of the substance recovered.Id. at 120-21.
We are mindful of the principle that "common sense must not be a stranger in the house of the law." [Cantrell v. Kentucky Unemployment Ins. Comm'n, 450 S.W.2d 235 (Ky. 1970)]. Common sense supports the hearing officers' conclusions that in each of the incidents involving marijuana, the inmates possessed dangerous contraband. In reviewing prison disciplinary actions, we recognize that the standard of proof is the "some evidence" standard. Further, the "some evidence" standard does not require that the evidence logically preclude any conclusion but the one reached by the hearing officer. Such is the case sub judice. The facts surrounding the three incidents involving marijuana, even with the field test results excluded, are sufficient to conclude there is "some evidence" of record to support the decision reached by the hearing officers[.]
In the present case, the record details the actions Hackett took to conceal the substance during the strip search. He removed the substance from his underwear, placed it in his mouth, and refused to spit it out. The officers had to use OC spray and a taser to get Hackett to comply. Had this substance merely been oregano cooking spice, as Hackett now asserts in his brief, common sense dictates that he would not have gone to such lengths to conceal it. These surrounding circumstances meet the "some evidence" standard to support Hackett's possession conviction. Therefore, the circuit court did not commit any error in dismissing Hackett's petition.
For the foregoing reasons, the order of the Oldham Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Kewan Hackett, pro se
Beattyville, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham
Frankfort, Kentucky