Opinion
NO. 2012-CA-001949-MR
07-19-2013
URIAH PASHA APPELLANT v. DAWN DECKARD, ARNOLD CHISHOLM, LAURA E. SIMPSON, and COOKIE CREWS APPELLEES
BRIEFS FOR APPELLANT: Uriah Pasha, Pro Se La Grange, 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NOT TO BE PUBLISHED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. 12-CI-00630
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND MOORE, JUDGES. CLAYTON, JUDGE: Uriah Pasha appeals from the October 4, 2012, order of the Oldham Circuit Court dismissing appellant's action against Dawn Deckard, Arnold Chisholm, Laura E. Simpson, and Cookie Crews. The appellant also appeals from the October 18, 2012, order of the Oldham Circuit Court that denied the appellant's motion for findings of fact and conclusions of law and motion for reconsideration. We affirm.
This action began as a disciplinary action by the Kentucky Department of Corrections ("Corrections") against appellant inmate for the charge of pursuing a non-correctional relationship with a non-inmate. The charges were a result of appellant's repeated attempts to engage in inappropriate conversations with Officer Powell. Witnesses testified that the appellant, while inappropriately dressed, had been going to the building where Officer Powell was positioned and made inappropriate statements to her; threatened her; and failed to leave after being instructed to do so. The appellant was initially given a warning and reprimand. However, after failing to cease his behavior, the appellant underwent a disciplinary hearing after which he was found guilty of the charge and received a penalty of forty-five (45) days disciplinary segregation and a forfeiture of sixty (60) days good time by the Adjustment Committee. The appellant then sought an appeal with the Warden, who concurred with the Adjustment Committee.
On August 1, 2012, the appellant filed a petition for declaration of rights with the Oldham Circuit Court, in which he alleged that the prison disciplinary hearing violated his due process rights. In response to the appellant's petition, the appellees filed a combined response and motion to dismiss. An order dismissing the action was entered on October 4, 2012. The appellant then filed a motion for reconsideration and a motion for findings of fact and conclusions of law. Both motions were denied on October 18, 2012. This appeal followed.
The appellant first argues that his penalty was a violation of Kentucky Revised Statutes (KRS) 197.045. KRS 197.045 allows Corrections to impose a forfeiture of earned sentencing credit or a denial of the right to earn sentencing credit, if a prisoner commits an offense or violates the rules of his or her institution. KRS 197.045(2). The Appellant argues that he must first be awarded sentencing credit before it can be forfeited. We disagree. The statute states in plain language that the right to earn sentencing credit can be revoked. The actual wording of the appellant's punishment, which identifies his penalty as a "forfeiture," as opposed to a "denial of right to earn," is inconsequential. The outcome remains the same. Accordingly, the appellant's argument is without merit.
The appellant's second, and final, argument on appeal is that the trial court committed reversible error when it dismissed the action prior to the record being fully developed. He maintains that, but for the order dismissing, he would have presented evidence that he was disciplined for the same course of conduct twice. More precisely, he argues that the appellees failed to show that he continued to engage in the type of behavior for which he previously received a warning and reprimand and for which he was ultimately disciplined. We disagree.
A petition for declaration of rights is the appropriate method an inmate may seek review of his or her disciplinary action of the Corrections Department. KRS 418.040. Similar to the authority of this Court over appeals, the circuit court has limited authority to ensure that the judgment of the agency "comports with the legal restrictions applicable to it." Smith v. O'Dea, 939 S.W.2d 353, 355 (Ky. App. 1997). The circuit court's review centers on the administrative record and only necessitates independent findings of fact if the administrative record does not permit meaningful review. Id. at 356. Thus, the foremost function of the circuit court is to review the disciplinary committee's record, with minimal judicial scrutiny, and determine whether "some evidence" exists which supports the agency's findings. Id. at 353.
Because the circuit court's review is limited to the administrative record, we disagree with appellant's contention that the record was not fully developed. The administrative record was made a part of the record by both the appellant and appellees. That record indicated that the appellant had been warned about his inappropriate behavior, had failed to modify said behavior, and was consequently disciplined. The evidence indicated that despite being previously warned that his behavior was inappropriate, the appellant continued to engage in inappropriate conversations with Officer Powell, including sexual related issues; would arrive at the academic building without official business and inappropriately dressed, in order to talk with Officer Powell; and made threatening remarks to Officer Powell. Thus, there is no evidence that appellant was disciplined twice for the same course of conduct, but rather that he was warned, failed to alter his behavior, and was consequently disciplined. This evidence satisfies the "some evidence" standard to uphold the Department of Corrections disciplinary action and warrant a dismissal of appellant's petition.
For the foregoing reasons, the October 4, 2012, order of the Oldham Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Uriah Pasha, Pro Se
La Grange, Kentucky
BRIEF FOR APPELLEE: Angela T. Dunham
Frankfort, Kentucky