Opinion
NO. 2016-CA-000668-MR
03-29-2019
JASPER POLLINI APPELLANT v. LADONNA THOMPSON, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS; AND DON BOTTOMS, IN HIS OFFICIAL CAPACITY AS WARDEN OF NORTHPOINT TRAINING CENTER APPELLEES
BRIEFS FOR APPELLANT: Miranda J. Hellman Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEES: Angela T. Dunham Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CI-00005 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: JONES, KRAMER, AND K. THOMPSON, JUDGES. JONES, JUDGE: Inmate Jasper Pollini appeals the Franklin Circuit Court's May 2, 2016 order granting the Appellees' motion to dismiss Pollini's petition for a declaration of rights. For the reasons set forth below, we reverse the order of the Franklin Circuit Court and remand with instructions to review the video footage of the underlying incident to determine whether it supports the disciplinary action taken against Pollini.
Pollini filed his notice of appeal on May 10, 2016. On August 10, 2017, prior to briefing, the Court granted Pollini's motion to place this appeal in abeyance pending a final decision by the Supreme Court of Kentucky in Conover v. Lawless, 2016-SC-000320-DG. That appeal obtained finality on March 22, 2018. On June 27, 2018, this appeal was returned to the Court's active docket. Briefing was completed on November 13, 2018. The appeal was assigned to a merits panel with Judge D. Lambert designated as the presiding judge. The appeal was reassigned to Judge Jones as presiding judge on January 25, 2019, after Judge D. Lambert left the Court following her election to the Supreme Court of Kentucky.
I. BACKGROUND
Pollini is a Kentucky state inmate. During the relevant time, he was housed at Northpoint Training Center ("Northpoint"). On November 19, 2014, Pollini was written up for an incident that occurred on November 10, 2014. Pollini allegedly fought and struggled with Officer Phillips when the officer attempted to confiscate a cellphone Pollini concealed in his pants. Three other officers came to Officer Phillips's aid. One officer retrieved the cellphone after Pollini threw it, and the other two officers helped Officer Phillips put Pollini in handcuffs. After escorting Pollini to the Special Management Unit, Officer Phillips's legs began to go numb, he experienced severe pain in his lower back, and he vomited due to the pain. Officer Phillips was then taken to the hospital.
Based on the information presented at the hearing, the adjustment officer found Pollini guilty of physical action resulting in death or injury of an employee and sentenced him to one hundred eighty (180) days in disciplinary segregation, a loss of three hundred thirty (330) days non-restorable good-time credit, and restitution in the amount of one thousand dollars ($1000.00). Pollini filed a warden's appeal. The warden denied Pollini's appeal.
Pollini then filed a complaint for declaratory and injunctive relief with the Franklin Circuit Court, arguing his due process rights were violated during the adjustment committee proceeding. Kentucky Department of Corrections Commissioner LaDonna Thompson and Warden Don Bottoms filed a motion to dismiss, arguing Pollini's complaint fails to state a claim upon which relief can be granted because the adjustment officer's decision is supported by "some evidence," and Pollini failed to preserve some issues for review. Pollini filed a response to the motion to dismiss, arguing he exhausted his administrative remedies as to each claim and reiterated that his due process rights were violated. The circuit court granted the motion to dismiss. This appeal followed.
II. STANDARD OF REVIEW
"A motion to dismiss for failure to state a claim upon which relief may be granted 'admits as true the material facts of the complaint.'" Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting Upchurch v. Clinton Cty., 330 S.W.2d 428, 429-30 (Ky. 1959)). Accordingly, "a court should not grant such a motion 'unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved[.]'" Id. (quoting Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977)). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, . . . an appellate court reviews the issue de novo." Id. (citation omitted).
III. ANALYSIS
As a preliminary matter, Appellees assert that we should affirm the circuit court because Pollini did not exhaust his administrative remedies. It is undisputed that Pollini filed an administrative appeal. However, courts may only review issues that are raised on administrative appeal to the warden. Houston v. Fletcher, 193 S.W.3d 276, 278 (Ky. App. 2006). The exhaustion requirement's aim is to afford the administrative agency with an opportunity to address the issues in dispute before court intervention. Therefore, we must look at the substance of Pollini's administrative appeal to determine whether he adequately exhausted his administrative remedies with respect to each issue he requests us to review.
We have reviewed Pollini's administrative appeal. With respect to the camera footage, the dispositive issue on appeal, Pollini complained to the Warden that the adjustment officer refused to allow Pollini or a neutral third party to watch the footage and did not "detail it on the record." In his petition, Pollini alleged his rights were violated because the adjustment committee officer "did not state whether the video was reviewed or what the video tape revealed." While Pollini's petition for declaratory judgment is not a verbatim recitation of his administrative appeal, the Warden was given an opportunity to consider the substance of the issues before court intervention. This is sufficient to satisfy the exhaustion requirement. Pollini's other arguments were similarly preserved.
Due process under the federal and Kentucky constitutions is implicated in prison disciplinary proceedings when, as in this case, the prisoner's good-time credit is at stake. Smith v. O'Dea, 939 S.W.2d 353, 357 (Ky. App. 1997). In the context of prison disciplinary proceedings, the prison is only required to afford the prisoner minimal due process; it does not have to afford the full panoply of rights due in a formal criminal prosecution by the state. See Ramirez v. Nietzel, 424 S.W.3d 911, 916 (Ky. 2014) (citing Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974)).
Before turning to video issue, we will briefly address Pollini's other arguments. In his brief, Pollini asserts that his due process rights were violated because the adjustment committee did not allow him to call approximately ten additional witnesses and did not allow him to access Officer Phillips's medical records. "[A]n inmate does not have an unfettered right to call a particular witness or admit certain documentary evidence." Ramirez, 424 S.W.3d at 917. However, the adjustment committee officer should provide a reasonable explanation of the denial of an inmate's evidentiary requests either at the adjustment committee proceeding or in response to a declaratory judgment action. Id.
As to the witnesses, the adjustment committee noted that Officer Phillips was contacted, but could not be reached. Officer Barnett was called, but was unable to attend the hearing because he was on another phone call at the time. Sgt. Gibson and Officer Boles were both called and testified. Officer Boles testified that he witnessed the incident and that Pollini was "using his feet to kick at Officer Phillips." Sgt. Gibson testified that by the time he arrived, Officer Phillips had already restrained Pollini. Sgt. Gibson took Officer Phillips to the hospital, but he did not know him very well and had no knowledge of any preexisting back problems. Officers Shoopman and Winston were also called for the purpose of establishing whether Officer Phillips had a preexisting back condition. Both denied having any such knowledge. In addition to the institutional employees, Pollini called three inmates: Inmate Turci, Inmate Johnson, and Inmate Bard. The inmates testified regarding their observations of the encounter between Pollini and Officer Phillips. Their testimony was that Pollini did not resist Officer Phillips's attempt to take him down.
Pollini was certainly given ample opportunity to call several witnesses. While he no doubt wanted to question Officer Phillips, it does not appear that the adjustment committee was able to make contact with him. Even so, Officer Phillips's account of the incident was recorded in the investigative report. There is no reason to believe his testimony would have been helpful to Pollini. The adjustment committee also tried to reach Officer Barnett, but he was unable to come to the hearing because he was on a work-related phone call. Given the considerable number of other witnesses who testified, it was reasonable for the committee to determine that the institution's needs were greater served by having Officer Barnett attend to other matters than offer what was likely to be largely duplicative testimony. With respect to Pollini's request to access Officer Phillips's emergency room and other medical records, the adjustment committee cited safety concerns because those documents contain private, identifying information about Officer Phillips. This was an entirely reasonable basis on which to deny the request.
Pollini also claims that adjustment committee violated his due process rights because the supervisor's review was started approximately thirty-five hours after the disciplinary report without documentation to support why the review did not take place within the required twenty-four-hour period in contravention of the prision's administrative regulation. The prison's failure to follow its administrative regulations, however, does not mean that Pollini's due process rights were violated.
Prison regulations, even those which include mandatory language such as "shall," do not automatically confer on the prisoner an added procedural due process protection. This Court refuses to render a prison official's failure to comply with the DOC's own regulations as a per se denial of procedural due process. To do so would be to expand the protections outlined in Wolff to include the extensive procedural requirements set forth in the CPP and other countless prison regulations and policies, a deviation from which would render that divergence a violation of a prisoner's due process rights.White v. Boards-Bey, 426 S.W.3d 569, 575 (Ky. 2014). Aside from citing the regulation, Pollini has failed to identify any right that was violated when the supervisor did not taken action on the report within twenty-four hours. While a delay of weeks or months could implicate due process, such was not the case here. The supervisor acted within thirty-five hours of the disciplinary report having been filed. Pollini's due process rights were not violated.
We will now turn to the video camera footage issue. An inmate has a limited right to present exculpatory evidence. Ramirez, 424 S.W.3d at 919. The Supreme Court of Kentucky clarified existing case law on this issue in Conover v. Lawless, 540 S.W.3d 766 (Ky. 2017). In Lawless, our Supreme Court held that an adjustment officer asked to review allegedly exculpatory evidence that is reasonably accessible and available for review must: 1) review the evidence; 2) indicate that the evidence was reviewed as part of the adjustment committee's written findings; and 3) consider the evidence. Id. at 769. In the event the adjustment committee does not comply with its duties, the circuit court is required to review the allegedly exculpatory evidence. Id. at 769.
The adjustment committee did not fulfill its responsibilities as set forth in Lawless. Because there is no indication that the adjustment committee actually reviewed the footage, the circuit court erred in dismissing the action without first reviewing the video footage. Therefore, we must reverse the circuit court's dismissal as a matter of law and remand this matter for additional proceedings. On remand, the circuit court must obtain and review the video "to determine whether it was indeed exculpatory and whether, in light of the new evidence, 'some evidence' existed for the [adjustment committee's] finding of guilt." Id. (quoting Ramirez, 424 S.W.3d at 920).
Lawless had not yet been rendered when this case was before the circuit court. While we must remand this matter for a review consistent with the Supreme Court of Kentucky's directives in Lawless, we are cognizant that the circuit court rendered its decision without this guidance. --------
IV. CONCLUSION
For the foregoing reasons, we reverse the order of the Franklin Circuit Court and remand for further proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Miranda J. Hellman
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEES: Angela T. Dunham
Justice and Public Safety Cabinet
Frankfort, Kentucky