Opinion
111,773.
04-24-2015
Herman BOYD, Appellant, v. Sam CLINE, Warden, Appellee.
Sam S. Kepfield, of Hutchinson, for appellant. Jon D. Graves, legal counsel, of Kansas Department of Corrections, of Hutchinson, for appellee.
Sam S. Kepfield, of Hutchinson, for appellant.
Jon D. Graves, legal counsel, of Kansas Department of Corrections, of Hutchinson, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Herman Boyd appeals the district court's summary dismissal of his petition under K.S.A. 60–1501 alleging there was not sufficient evidence to support various disciplinary infractions of which he was convicted while incarcerated in the Hutchinson Correctional Facility (HCF). After careful review of the record, however, we conclude that the issues presented are moot and that we lack jurisdiction because Boyd failed to establish that the discipline imposed implicated a liberty or property interest.
On March 9, 2013, Boyd was cited by the Department of Corrections (DOC) with various disciplinary infractions. First, he was charged with use of stimulants based on statements he made in a letter admitting that he “smoked weed” the week before. He also was charged with undue familiarity with two former DOC employees, with accessory to battery, and with security threat group activity. Boyd admitted the final charge. The charges arose when HCF employees in the mailroom recovered a letter Boyd had sent out of the facility that was returned as “unable to forward.” HCF staff reviewed the contents of the returned letter and began an investigation. The disciplinary report stated the envelope was addressed to Missy Gutierrez, a known alias of a former HCF employee; another letter was addressed to “Dovie,” a known alias of a second former HCF employee. The disciplinary report stated that the contents of the letters supported the charges. Boyd received notice of the charges the next day.
A hearing was held on March 27, 2013. Boyd pled guilty to the charge relating to security threat group activity and not guilty to the remaining charges. After hearing the evidence on the remaining three charges, the hearing officer found there was insufficient evidence to establish that Boyd was an accessory to battery. The hearing officer, however, convicted Boyd of the undue familiarity and use of stimulants charges. The hearing officer imposed 30 days of disciplinary segregation and 30 to 60 days of restrictions; it does not appear a fine was imposed, and no good-time credit was forfeited. The HCF warden approved the hearing officer's decision. Boyd has served his days of restriction as of approximately June 27, 2013.
Boyd appealed his convictions to the DOC Secretary. Boyd argued that the use of stimulants charge was not supported by the evidence. He asserted he was never asked to provide a sample for drug testing and he even asked for a drug test. He claimed that any assertion in the letters that he had used drugs was insufficient to support the charge. Boyd also denied that the letters established that he had any improper relationship with two former DOC employees, who he claimed contacted him after they left the DOC.
The Secretary's designee found that the hearing officer's decision was based upon some evidence and that HCF employees substantially complied with standards and procedures with respect to the disciplinary action. The designee's decision was dated April 19, 2013; Boyd acknowledged receiving that decision on May 2, 2013.
Boyd filed a petition with the Reno County District Court seeking relief under K.S.A. 60–1501, which he delivered to HCF personnel in a timely fashion. In his petition, Boyd claimed that there was insufficient evidence to support the disciplinary reports charging him with undue familiarity and use of stimulants. Boyd also claimed that the DOC violated his rights to due process and under the First, Fourth, and Fifth Amendments to the United States Constitution.
In response to Boyd's petition, the DOC filed a motion to dismiss. The DOC contended that Boyd did not file his petition with the district court within 30 days of the Secretary's final decision and was therefore untimely. The district court denied this motion, finding that Boyd had given the petition to his unit team in a timely fashion. Consequently, the district court retained jurisdiction to hear the matter on the merits.
Thereafter, the DOC filed an answer and second motion to dismiss. The DOC argued the petition should be summarily dismissed. The State asserted that Boyd was sentenced to 30 days' disciplinary segregation for undue familiarity and concurrent terms amounting to 60 days' restriction. In its motion, the DOC argued there was some evidence to support Boyd's convictions and his petition should be dismissed.
Following an initial hearing in October, the district court upheld some of the convictions. The court found there was some evidence of security theft group activity and use of stimulants. The court, however, took the undue familiarity issue under advisement; the DOC agreed to provide the correspondence in dispute so the court could study the evidence considered by the hearing officer. Boyd filed a motion to reconsider disputing the identity of the persons to whom the letters were addressed and reiterating his arguments that a mere statement of smoking weed in a letter was not “some evidence” of actual use of drugs.
At a subsequent hearing, the district court reported receiving and reviewing the letter in issue and found that the letter provided some evidence to show Boyd's familiarity with the former DOC employees predated their terminations. The letter was apparently seven handwritten pages, front and back. Consequently, the district court upheld the undue familiarity charge. The district court also denied Boyd's motion for reconsideration.
Boyd prematurely appealed to this court, but his appeal is permissible under Supreme Court Rule 2.03(a) (2014 Kan. Ct. R. Annot. 12).
On appeal, Boyd reiterates his arguments that there was not sufficient evidence to support his disciplinary infractions. The DOC claims that not only was there some evidence to support the infractions, but that Boyd's claims are now moot.
We shall address the State's claim of mootness first. The DOC contends that the case is moot because the DOC-imposed disciplinary sanctions of segregation and 60 days' restrictions had been fully served. The DOC asserted that the hearing officer did not forfeit any of Boyd's good-time credit and no fine was assessed. The DOC filed a motion with this court earlier in this case to dismiss based upon mootness; the motions panel—which did not have the record on appeal—denied that motion.
Generally speaking, appellate courts in Kansas do not decide moot questions or render advisory opinions. State v. Montgomery, 295 Kan. 837, Syl. ¶ 2, 286 P.3d 866 (2012). Our Supreme Court, quoting McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009), has stated “the test for mootness as being whether ‘it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.’ “ Montgomery, 295 Kan. at 840–41.
Although the underlying factual situation here is different than faced the court in Montgomery, the record on appeal discloses that Boyd has served the entire sanction assessed by DOC even if his claims of error or insufficiency of evidence are correct. The State has no authority to punish him any further and, as will be discussed later in this opinion, Boyd's future liberty or property interests will not be impacted by this decision. Accordingly, any act that might be undertaken by this court would be an idle act insofar as his rights are concerned.
As pointed out by another panel of this court in State v. Phillips, No. 107,341, 2014 WL 3907060, at *2 (Kan.App.2014) (unpublished opinion), the mootness analysis does not necessarily end if the issues raised on appeal are capable of repetition or raise concerns of public importance. Such is not the case in this appeal because the controversy has ended, Boyd has fully served his sanction, and any ruling that could be made would be ineffectual for any purpose. As in Montgomery, 295 Kan. at 841–44, and Phillips, 2014 WL 3907060, at *2, his appeal raises no concern of public importance and does not raise a justiciable controversy.
Although the DOC sought dismissal based upon mootness grounds, the essence of its argument was that there was no liberty or property interest involved in the case. In other words, this court (and the district court) lacked jurisdiction to consider Boyd's petition. As noted in Boyd's brief, to obtain judicial review under K.S.A. 60–1501, an inmate appealing from a prison disciplinary sanction must assert the deprivation of some constitutionally protected interest. Otherwise, the petition may be summarily dismissed. Anderson v. McKune, 23 Kan.App.2d 803, 806–07, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997) ; see Wolff v. McDonnell, 418 U.S. 539, 557–58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) ; Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005). As a result, this court must first determine whether a constitutionally protected interest was implicated in Boyd's punishment.
The parameters of liberty and property interests have been established over the years. There is no indication in the record that the DOC assessed any type of fine or otherwise took property of Boyd as a sanction for his violations. Thus, no property interest has been implicated in the case. Boyd has not claimed that he was deprived of any recognizable property interest.
Boyd also failed to establish any liberty interest has been impaired. Our appellate courts have repeatedly held that assignment to disciplinary segregation does not rise to the level of a constitutionally protected interest. The Kansas Supreme Court has held that a prisoner has no protected liberty interest in remaining in the general prison population rather than being separated for a time. Murphy v. Nelson, 260 Kan. 589, Syl. ¶ 9, 921 P.2d 1225 (1996) ; see Sandin v. Conner, 515 U.S. 472, 485–87, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) ; Anderson, 23 Kan.App.2d at 807. To the extent Boyd was placed on restrictions, there is no due process violation unless the resulting administrative punishment results in a significant and atypical hardship for the inmate over and above the inmate's underlying sentence. See Ramirez v. State, 23 Kan.App.2d 445, 447, 931 P.2d 1265 (1997).
We note that in opposing the State's earlier mootness arguments, Boyd claimed that sanctions affected his good-time credits. Although there is no evidence in the record to support this claim, it is irrelevant. Even if the DOC forfeited some of Boyd's good-time credits, there still is no showing of an impaired liberty interest. While a sanction that removes good-time credits already earned implicates a protected liberty interest, Kesterson v. State, 276 Kan. 732, Syl. ¶ 2, 79 P.3d 1074 (2003), a prisoner has no protected liberty interest in good-time credits not yet earned or awarded. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 8, 24 P.3d 128 (2001). Thus, an inmate has no protected interest when, due to prison rule violations, he or she loses goodtime credit that has not yet been earned or awarded. Hardaway v. Lamed Correctional Facility, 44 Kan.App.2d 504, 504–05, 238 P.3d 328 (2010).
As a result, based upon Boyd's failure to establish that his disciplinary proceedings implicated a liberty or property interest, the district court lacked jurisdiction to hear his claims; consequently, this court also lacks jurisdiction to consider his appeal.
For these reasons, consideration of the merits of Boyd's claim of insufficiency of evidence to support his conviction of disciplinary violations is unnecessary.
Appeal dismissed.