Opinion
No. 107,082.
2012-08-31
Adam J. ANDERSON, Appellant, v. Jay SHELTON, Warden, NCF, and State of Kansas, Appellees.
Appeal from Norton District Court; Preston A. Pratt, Judge. Adam J. Anderson, appellant pro se. Robert E. Wasinger, of Kansas Department of Corrections, Norton Correctional Facility, for appellees.
Appeal from Norton District Court; Preston A. Pratt, Judge.
Adam J. Anderson, appellant pro se. Robert E. Wasinger, of Kansas Department of Corrections, Norton Correctional Facility, for appellees.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Prison inmate Adam Anderson has brought a court challenge to the prison disciplinary finding that he violated a prison rule prohibiting the use of stimulants. Although a urine sample attributed to Anderson tested positive for marijuana, he claims that he didn't get proper notice of the disciplinary hearing, wasn't allowed to call witnesses, and was convicted on insufficient evidence because the sample wasn't properly shown to be his.
But Anderson has not presented a viable claim that his constitutional rights were violated:
• The notice that's constitutionally required is notice of the charge, something that Anderson undeniably received.
• Prison regulations require that an inmate make a request for witnesses within 48 hours of receiving the disciplinary report that initiates the disciplinary process, and Anderson didn't make a request in advance of his hearing. In this circumstance, even assuming the hearing officer denied a witness request made for the first time at the disciplinary hearing, that wouldn't violate Anderson's constitutional due-process rights.
• All that's required by way of evidence in a prison disciplinary hearing is some evidence that supports the charge, and a single urine test meets this standard. Questions about chain of custody are for the fact-finding process, not an appellate court.
We therefore affirm the district court's judgment, which dismissed Anderson's habeas petition.
Factual Background
Anderson is an inmate serving a 73–month sentence at the Norton Correctional Facility. On February 1, 2011, he submitted a urine sample in the presence of Officer Aitken, a corrections officer, and the sample tested positive for marijuana. Officer Widener, a second corrections officer, tested the same sample and also got a positive result for marijuana. Widener then filed a report charging Anderson with a violation of a Kansas administrative regulation, K.A.R. 44–12–312, which prohibits the use of stimulants, a Class I disciplinary offense.
Anderson's disciplinary hearing was held February 17, 2011. Officer Widener was the only witness called to testify. Transcripts aren't made of prison disciplinary hearings, but the record provides a summary of her testimony. After Widener testified that her toxicology report “stand[s] as written,” Anderson asked what procedure is used to seal the container holding the urine sample and put the collecting officer's initials on it. Widener responded, “I don't know, I am not there at collections, but it is sealed when I get the sample.” Anderson followed up by asking how Widener knew this sample was Anderson's. Widener replied, “When ... Aitken gave me the sample he said it was yours and you were with him.”
The hearing officer who heard this evidence found Anderson guilty and entered sanctions of 20 days of disciplinary segregation, 60 days of privilege restrictions, the loss of 30 days of earned good-time credit, a $20 fine, and restitution for the costs of urine testing. The warden affirmed that decision. Anderson appealed to the Secretary of Corrections, but he too affirmed the decision.
Anderson then filed a habeas corpus petition under K.S.A. 60–1501 raising several claims, three of which are being pursued on this appeal. Anderson claims that his constitutional due-process rights were denied because (1) he wasn't given advance notice of the time and place of his hearing because the summons wasn't properly served on him; (2) he wasn't allowed to call witnesses on his own behalf; and (3) the evidence against him was insufficient to convict him.
The district court initially entered a “Conditional Order of Dismissal,” finding that Anderson hadn't provided “the necessary documentation” to address his claims. The court gave Anderson the chance to file further documents, and Anderson submitted a copy of the disciplinary report. The court then issued a “Second Conditional Order of Dismissal.” This time, the court noted that Anderson complained that the officer who collected the urine sample didn't follow required procedures and that the sample must have been contaminated. The court also noted that Anderson complains “that the hearing officer would not call the officer that collected the sample[, Aitken]. However, [Anderson] has not provided a copy of his request for witnesses [to this court.]” The court gave Anderson another deadline to provide a copy of his request for witnesses as well as documentation indicating whether that request had been granted or denied.
In response, Anderson filed a supplemental pleading stating that “the entire disciplinary hearing process was a mockery and sham of what should have been afforded [to him].” Anderson also submitted an affidavit saying that, although he had asked to call witnesses at the hearing, he couldn't provide written documentation because the hearing record was “incorrect [and] inaccurate.” The affidavit outlined what Anderson claimed took place at the hearing.
The district court found that based on the sanctions the hearing officer had entered, Anderson did have constitutional due-process rights. But the court dismissed the petition, finding that Anderson hadn't provided a viable claim that his rights had been violated. The court said that Anderson had received advance notice of the hearing (based on an “X” on the inmate signature line of the summons) and that Anderson hadn't shown he had requested any witnesses. The court found no violation of Anderson's due-process rights.
Anderson has appealed to this court.
Analysis
K.S.A. 60–1501 allows a person confined in a Kansas prison to bring a petition for a writ of habeas corpus. An inmate may bring a habeas claim if his or her constitutional due-process rights have been violated. To have a viable due-process claim, the inmate must show the improper deprivation of a life, liberty, or property interest. See Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). Here, Anderson had liberty and property interests at stake: he was fined and he lost earned good-time credit. See Sauls v. McKune, 45 Kan.App.2d 915, 920, 260 P.3d 95 (2011) (holding that inmate has protected property interest when a fine is collected from the inmate); Kesterson v. State, 276 Kan. 732, Syl. ¶ 2, 79 P.3d 1074 (2003) (holding that inmate has protected liberty interest in good-time credits already earned). So the question in this case will be whether Anderson was denied due process. When liberty or property interests are affected by a prison disciplinary sanction, the inmate is entitled to a minimum level of due process. Sauls, 45 Kan.App.2d 915, Syl. ¶ 2.
In considering whether a petition states a potentially valid claim, the district court must accept as true the facts alleged and their reasonable inferences. If that examination shows that the plaintiff may be entitled to relief, then the district court must issue the requested writ of habeas corpus and direct the person to whom the writ is issued to file an answer. K.S.A. 60–1503(a); Merryfield v. Kansas Dept. of SRS, 44 Kan.App.2d 324, Syl. ¶ 11, 236 P.3d 528 (2010). In reviewing the district court's summary dismissal, we too must accept the plaintiff's allegations as true; we then must determine independently, without any required deference to the district court, whether the facts alleged and their reasonable inferences state a potential claim for relief. Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008).
Anderson Received Sufficient Notice of the Charges to Satisfy Due Process.
In his claim about lack of notice, Anderson confuses what is required under the Constitution. He complains about a failure to comply with an administrative regulation that he be served with a hearing notice at least 24 hours before the hearing. See K.A.R. 44–13–401(b). But we must focus on what's constitutionally required, not what's required under an administrative regulation. See Washington v. Roberts, 37 Kan.App.2d 237, Syl. ¶ 4, 152 P.3d 660 (2007) (holding that the mere failure to follow an administrative rule in a prison disciplinary hearing doesn't violate an inmate's constitutional rights).
The United States Supreme Court held in Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), that an inmate must be given “written notice of the charges” at least 24 hours before a disciplinary hearing is held, not that the inmate must be given 24 hours' notice of the hearing. The reason for this is to enable preparation of a defense. Swafford v. McKune, 46 Kan.App.2d 325, Syl. ¶ 4, 263 P.3d 791 (2011), rev. denied 294 Kan. –––– (May 21, 2012); Washington, 37 Kan.App.2d 237, Syl. ¶ 3. Moreover, the fundamental elements of procedural due process are notice and an opportunity to be heard in a meaningful way. State v. Moody, 282 Kan. 181, 188, 144 P.3d 612 (2006).
Anderson got notice of the charge against him when the initial disciplinary report was given to him on the day it was made. And Anderson had time to prepare a defense. In fact, he prepared a written affidavit expressing his innocence on February 8, 2011, 9 days before the disciplinary hearing was held. And despite his claim that he didn't get notice of the hearing, he didn't ask for a continuance to delay it. Anderson's due-process right to notice of the charge against him was satisfied.
The Denial of Anderson's In–Hearing Request to Call a Witness Did Not Violate His Due–Process Rights.
The inmate's due-process rights in a disciplinary hearing include having the opportunity to call witnesses, and if the request to call a witness is denied, prison officials generally have a duty of persuasion to show a reasonable basis for that decision. See Sauls, 45 Kan.App.2d 915, Syl. ¶ 2; but see Burns v. P.A. Dept. of Corrections, 642 F.3d 163, 175 (3d Cir.2011) (holding that hearing officer's refusal to force fellow inmate to testify may not have to be explained by hearing officer since inmate fear of retaliation is a significant interest in prison environment). Here, Anderson contends that he asked—after the evidence had been presented against him—to call Officer Aitken as a rebuttal witness. Anderson said that he couldn't have anticipated that Officer Widener would testify falsely about how she had received the urine sample.
There are two problems with Anderson's argument. First, Anderson received the disciplinary report that said his urine sample had been positive for marijuana, and Widener was the reporting officer. So Anderson knew that Widener claimed the urine sample she tested, which was positive for marijuana, had come from Anderson. Second, a prison rule provides that an inmate who receives a disciplinary report shall submit a written witness request within 48 hours of receiving the disciplinary report. K.A.R. 44–13–306. Anderson didn't submit a written request for witnesses, and the district court gave him the opportunity to show otherwise had that been the case.
Another prison rule, K.A.R. 44–13–403(o), provides that the hearing officer need not call a witness requested by the inmate at the hearing and not previously requested “unless exceptional circumstances outside the control of the inmate exist and the testimony would most likely affect the outcome of the hearing.” Given that Anderson had received Widener's disciplinary report and had not requested any witnesses in compliance with K.A.R. 44–13–306, the denial of Anderson's request at the hearing to call Officer Aitken did not violate Anderson's constitutional due-process rights.
The Evidence Was Sufficient to Support the Hearing Officer's Decision and to Satisfy Due Process.
As to the sufficiency of the evidence, due-process requirements are satisfied if at least “some evidence” supports the prison's disciplinary decision. Superintendent v. Hill, 472 U.S. 445, 455–56, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Miller v. McKune, 38 Kan.App.2d 810, Syl. ¶ 3, 174 P.3d 891 (2006). While Anderson contends that Officer Widener's testimony was false, we certainly can't discount it. Widener testified that Aitken gave her a urine sample that he said was Anderson's, and that Anderson was present when that took place. Widener also said that sample tested positive for marijuana. As the United States Court of Appeals for the Tenth Circuit has held, “A single urinalysis amounts to ‘some evidence’ and thus satisfies due process. [Citation omitted.]” Easter v. Saffle, 51 Fed. Appx. 286, 289 (10th Cir.2002) (unpublished opinion); accord Mendoza v. Tamez, 451 Fed. Appx. 715, 717 (10th Cir.2011) (unpublished opinion); Harrison v. Dahm, 911 F.2d 37, 41–42 (8th Cir.1990), reh. denied August 23, 1990. And although Anderson challenges the chain of custody followed while handling his urine sample, such a challenge raises only an evidentiary question for resolution in the fact-finding process, not a constitutional issue. Thompson v. Owens, 889 F.2d 500, 502 (3d Cir.1989); Higgs v. Easterling, 2012 WL 692610, at *6 (W.D.Ky.2012).
The district court dismissed Anderson's petition, and we affirm its judgment.