Opinion
NO. 2019-CA-000549-MR
01-24-2020
PATRICK HUMBLE APPELLANT v. RAVONNE SIMS, IN HER OFFICIAL CAPACITY AS WARDEN OF ROEDERER CORRECTIONAL COMPLEX; AND KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES
BRIEF FOR APPELLANT: Rhett B. Ramsey Monticello, Kentucky BRIEF FOR APPELLEES: Kristin Wehking Kentucky Justice & Public Safety Cabinet Office of Legal Services Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 19-CI-00006 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES. DIXON, JUDGE: Patrick Humble appeals the orders of the Wayne Circuit Court dismissing his petition for declaration of rights entered on February 4, 2019, and March 19, 2019. After careful review of the record, briefs, and law, we affirm.
On August 16, 2018, at about 3:30 a.m., Captain Tim Koger and Deputy Jackie Gregory observed a fire in Cell 103 of Roederer Correctional Complex. Captain Koger saw Humble, an inmate in Cell 103, drop a red lighter and put his foot on it. Captain Koger went to the bunk that was "smoldering with fire," removed some blankets and found inmate Larry Pyles tied down to the bunk. Pyles then started pulling and breaking the strings that were holding him to the bunk. Captain Koger and other deputies extinguished the fire and removed the restraints from Pyles. There did not appear to be any injury to Pyles.
This event was documented in incident reports, and a copy of the Disciplinary Report, Part I - Write-Up and Investigation, was given to Humble. Humble was advised of his rights to call witnesses and have an inmate legal aide or staff representative present at his hearing.
Humble and his legal aide were present at the disciplinary hearing. On the hearing's record, Humble stated that his due process rights were adhered to at the hearing. Humble testified "that's not how it happened at all. Dude wasn't tied to his bed. There was no fire going when they got back there. I put it out. The whole thing is blown out of proportion[.]"
Based on the evidence presented at the hearing, the Adjustment Officer ("AO") found Humble guilty of "cat. 7-02 Physical altercation resulting in death or injury of an inmate" and imposed the penalty of two years non-restorable good time loss and thirty days' segregation with twenty days' time served. Humble appealed to the warden, Ravonne Sims, who denied his appeal.
Humble subsequently filed the instant petition for declaration of his rights. Warden Sims and the Kentucky Department of Corrections responded and moved the trial court to dismiss the action. The trial court granted the motion to dismiss. Humble moved the trial court to alter, amend, or vacate its order. The trial court denied Humble's motion, and this appeal followed.
We begin by commenting on the proper structure of an appellate brief and the importance of preservation. CR 76.12(4)(c)(v) requires each argument in the brief for appellant to begin with a statement of preservation referencing "the record showing whether the issue was properly preserved for review and, if so, in what manner." Humble's briefs contain no statement of preservation for any issue raised.
Kentucky Rules of Civil Procedure. --------
We have three options: "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only, Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)." Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Because these errors were made by counsel, we will not punish the client. We will review the alleged deficiencies as best we can—but warn counsel the Court may not be so lenient in the future.
Prison disciplinary actions require only "some evidence" of guilt. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). "[C]ourts only review the decisions of the [adjustment officer] and prison officials are afforded broad discretion." Yates v. Fletcher, 120 S.W.3d 728, 731 (Ky. App. 2003). This Court must affirm if there is "some evidence" supporting the charge. Hill, 472 U.S. at 455, 105 S.Ct. at 2774. "The primary inquiry [in a prison disciplinary action] is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board[,]" and "[e]ven meager evidence will suffice." Ramirez v. Nietzel, 424 S.W.3d 911, 917 (Ky. 2014) (footnotes and internal quotation marks omitted). "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.
Prison disciplinary 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). "Minimal due process is all that is required regarding a person detained in lawful custody." McMillen v. Kentucky Dep't of Corrections, 233 S.W.3d 203, 205 (Ky. App. 2007). The requirements of due process are satisfied if the "some evidence" standard is met. Hill, 472 U.S. at 455, 105 S.Ct. at 2774.
On appeal, Humble first argues that his right to substantive due process was violated because the AO's finding of guilt is not supported by any evidence. Humble points to the fact that no proof was submitted that Pyles was injured by this incident. However, Kentucky Corrections Policies and Procedure ("KCPP") policy number 15.2, Section II, subsection E, provides "[a] person may be found to have committed the violation listed in this policy if he . . . [a]ttempts to commit the violation[.]" The evidence supporting the AO's finding of guilt for physical altercation resulting in death or injury of an inmate are the facts that Humble was in the cell where the fire was, had a lighter, tried to hide the lighter, and Pyles was tied to the bunk. It may be inferred that Humble attempted to kill or injure Pyles from this evidence. The fact that no injury was sustained is immaterial for this analysis.
Humble also argues that the incident did not meet the definition established for a "physical action" under the KCPP. KCPP policy number 15.2, Section I, defines physical action as "any act of fighting, hitting, kicking, shoving, pushing, biting, using force or other similar types of physical contact, throwing, squirting, or spitting any item, substance or fluid." This list is not an exhaustive one but, rather, is meant to be illustrative. The AO did not err in determining that tying another inmate to a bunk and lighting it on fire were physical actions. While those actions were not specifically enumerated in the definition of physical action, it would lead to an absurd result not to consider this definition applicable to those actions. As mentioned previously, there was some evidence that Humble committed those physical actions; therefore, the finding must be upheld.
Humble further argues that he cannot be found guilty of committing the offense and/or inchoate offense because there is no evidence of his intent to commit the offense. Humble asserts that because there was no evidence presented as to his intent to commit the offense, it was improper for the AO to find him guilty. We disagree with Humble's contention, which is not borne out by the record. The record contains eyewitness testimony, as well as circumstantial evidence, from which reasonable inferences were made by the AO concerning Humble's intent to commit the offense.
The Kentucky Supreme Court has held:
in a criminal case, consciousness of guilt can be inferred from things like assumption of a false name after a crime, and, in turn, the "fact of guilt" can be inferred from the defendant's consciousness of guilt. See Woodard v. Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004); see also [John Henry Wigmore & Peter Tillers, Evidence in Trials at Common Law § 41, at 1111 (rev. ed. 1983)] (discussing examples of legitimate inferences upon inferences). Such a chain of reasoning would violate an absolute no-inferences-upon-inferences rule. But as long
as an inference is grounded in common sense and experience, in reason and logic, and in the evidence at trial, it should be allowed and, indeed, embraced.Southworth v. Commonwealth, 435 S.W.3d 32, 46 (Ky. 2014).
Herein, the inference of Humble's intent was not only reasonable but also supported by evidence presented at the disciplinary hearing—namely, the facts that Humble was in the cell where the fire was, had a lighter, and tried to hide the lighter, coupled with the fact that Pyles was tied to the bunk that was smoldering with fire. Accordingly, the AO did not err in inferring Humble's intent to commit the offense and finding him guilty thereof.
Humble next argues that he was denied his rights of due process. Humble contends that there is no showing he was given a true opportunity to call witnesses and present documentary evidence during his disciplinary hearing. However, the converse is also true: Humble has made absolutely no showing that he was denied the opportunity to call witnesses and/or present documentary evidence during his disciplinary hearing. We will not search the record to construct Humble's argument for him, nor will we go on a fishing expedition to find support for his underdeveloped arguments. "Even when briefs have been filed, a reviewing court will generally confine itself to errors pointed out in the briefs and will not search the record for errors." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). Humble's argument is conclusory, speculative, and without factual basis. Humble's unsupported assertion of violation of his due process rights on these contentions warrants no further discussion.
Humble further alleges that the statements contained in the record from the AO and warden are so brief in nature as to create no meaningful showing of the evidence which was relied upon. Humble claims it is apparent that the AO and warden conducted a cursory and routine—rather than meaningful—review because of the lack of evidence supporting the finding of his guilt. We disagree. The disciplinary report forms clearly and specifically detail the evidence relied upon by the AO and warden which give support to their findings and decisions. Therefore, Humble's due process rights were not violated.
Humble's final argument is that the dismissal of his petition is improper because the motion to dismiss should be viewed as a motion for summary judgment. Another panel of our Court described this standard, stating:
summary judgment for the Corrections Department is proper if and only if the inmate's petition and any supporting materials, construed in light of the entire agency record (including, if submitted, administrators' affidavits describing the context of their acts or decisions), does not raise specific, genuine issues of material fact sufficient to overcome the presumption of agency propriety, and the Department is entitled to judgment as a matter of law. The court must be sensitive to the possibility of prison abuses and not dismiss legitimate petitions merely because of unskilled presentations. Jackson v. Cain, 864 F.2d 1235 (5th Cir. 1989). However, it must also be free to respond expeditiously to meritless petitions. By requiring
inmates to plead with a fairly high degree of factual specificity and by reading their allegations in light of the full agency record, courts will be better able to perform both aspects of this task.Smith v. O'Dea, 939 S.W.2d 353, 356 (Ky. App. 1997).
Humble asserts that he has raised specific, genuine issues of material fact in his petition and subsequent filings and that he has met his burden in overcoming the presumption of agency propriety. For the reasons previously discussed, we disagree. Contrary to Humble's assertions, there is ample evidence to support the findings and decisions of the AO and warden; hence, his petition was properly dismissed.
Therefore, and for the foregoing reasons, the orders entered by the Wayne Circuit Court are AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Rhett B. Ramsey
Monticello, Kentucky BRIEF FOR APPELLEES: Kristin Wehking
Kentucky Justice & Public Safety
Cabinet
Office of Legal Services
Frankfort, Kentucky