Opinion
NO. 2013-CA-000872-MR
06-20-2014
WALTER E. BREWER, III APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS; LADONNA THOMPSON, COMMISSIONER, KYDOC; JAMES ERWIN, DEPUTY COMMISSIONER, KYDOC; KIMBERLY POTTER-BLAIR, DEPUTY COMMISSIONER, KYDOC; CLARK TAYLOR, WARDEN, KENTUCKY STATE REFORMATORY; JAMES COYNE, DEPUTY WARDEN, KENTUCKY STATE REFORMATORY; AND RONYIELD SHIRLEY, UNIT ADMIN., KENTUCKY STATE REFORMATORY APPELLEES
BRIEFS FOR APPELLANT: Walter E. Brewer, III, Pro se Burgin, Kentucky BRIEF FOR APPELLEES: J. Todd Henning Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 13-CI-00133
OPINION
AFFIRMING
BEFORE: LAMBERT, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Walter E. Brewer III, appeals from an order of the Franklin Circuit Court dismissing his petition for declaration of rights alleging the Kentucky Department of Corrections improperly considered an incident report from the Hardin County Detention Center when determining his security classification. We conclude Brewer has not alleged facts sufficient to sustain a petition for declaration of rights and affirm.
Brewer was incarcerated at the Hardin County Detention Center when a deputy jailer smelled tobacco smoke odor emanating from Brewer's cell and found a device commonly used to light tobacco products. When asked to leave his cell, Brewer initially refused and argued with the deputy. The Hardin County Detention Center investigative reports indicate Brewer "head-butted" the deputy. The deputy then used what the Commonwealth admits was excessive force upon Brewer.
According to the record available to this Court, Brewer filed an action in the U.S. District Court for the Western District of Kentucky against the Hardin County Detention Center and various defendants in their individual and official capacities. The federal court docket sheet filed as an exhibit in the Franklin Circuit Court indicates that the action was settled.
Brewer filed a petition for declaration of rights requesting an order requiring all reference to the Hardin County Detention Center disciplinary report and internal affairs report be expunged from his institutional permanent record and no reference to it be permitted to remain in his parole board file. Further, he requested the Kentucky Department of Corrections be ordered to reclassify Brewer without reference to the Hardin County Detention Center disciplinary records.
Pivotal to the resolution of Brewer's claims is the rule that a prisoner has no right to a particular security level. Mahoney v. Carter, 938 S.W.2d 575, 576 (Ky. 1997).
Unlike persons who are free in society, persons who are lawfully incarcerated have only the narrowest range of protected liberty interests. It is well established that a prisoner has no inherent right to a particular security classification or to be housed in a particular institution. In fact, so long as the conditions or the degree of confinement to which the prisoner is subjected do not exceed the sentence which was imposed and are not otherwise in violation of the Constitution, the due process clause of the Fourteenth Amendment does not subject an inmate's treatment by prison authorities to judicial oversight.Id. (internal citations omitted). While Brewer speculates that the disciplinary report may be used to deny him parole, such a collateral consequence is insufficient to create a liberty interest. There is no protected liberty interest in parole, which is "a matter of legislative grace or executive clemency." Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999).
Based on the foregoing, the order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Walter E. Brewer, III, Pro se
Burgin, Kentucky
BRIEF FOR APPELLEES: J. Todd Henning
Frankfort, Kentucky