Opinion
NO. 2016-CA-000437-MR
02-24-2017
CHRISTOPHER BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Christopher Brown Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Brenn O. Combs Department of Corrections Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LYON CIRCUIT COURT
HONORABLE C.A. WOODALL, III, JUDGE
ACTION NO. 15-CI-000018 OPINION
AFFIRMING
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BEFORE: DIXON, J. LAMBERT AND STUMBO, JUDGES. DIXON, JUDGE: Christopher Brown (Brown) brings this pro se appeal of an order of the Lyon Circuit Court dismissing his petition for a declaration of rights. He argues that a lit "cigarette" should not have been classified as dangerous contraband because he did not possess some apparatus to light it with, and because he was not smoking tobacco. Because we hold that the lit "cigarette" could itself constitute dangerous contraband, we affirm.
Brown's notice of appeal lists the Commonwealth of Kentucky as the only appellee in this case, even though he named several different appellees below.
On October 3, 2014, Correctional Officer Tommy Fiddler noticed some suspicious activity in front of Cell House 6 at the Kentucky State Penitentiary. He reported the matter to Sergeant Derek Roberts. Sergeant Roberts and Lieutenant James Beavers viewed the security camera footage and saw an inmate smoking an "unknown object" that had "the appearance of a cigarette." The inmate passed the object to Christopher Brown, who began smoking it. Lieutenant Beavers placed Brown and the other inmate smoking the object in disciplinary segregation. Officers collected a urine sample from Brown to test for tobacco, and the test came back negative. Brown admitted that he was smoking, but stated that he was smoking tea.
In his brief, Brown asserts that inmates smoke substances other than tobacco because tobacco is difficult to procure.
An adjustment committee reviewed the security camera footage and found Brown guilty of "possession or promoting of dangerous contraband" pursuant to CPP 15.2(II)(C)(VI)(3). As a result, he was sentenced to 90 days' disciplinary segregation and ordered to pay restitution for the cost of his drug test. Warden Randy White denied Brown's appeal.
Kentucky Corrections Policies and Procedures. --------
Brown filed a petition for a declaration of rights in Lyon Circuit Court, alleging that the decision violated his due process rights. The circuit court dismissed, finding sufficient evidence in the record to support the adjustment committee's determination. This appeal follows.
Brown's sole argument on appeal is that he should not have been charged with possessing or promoting dangerous contraband.
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. So 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. . . . Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo.Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (internal citations and quotation marks omitted).
CPP 9.6(II) states that "[a]nyone who promotes contraband or dangerous contraband may be subject to the administrative disciplinary procedures outlined in CPP 15.2 or may be prosecuted as provided in KRS 520.050 or 520.060." KRS 520.010(3) defines "dangerous contraband" as
contraband which is capable of use to endanger the safety or security of a detention facility or persons therein, including, but not limited to, dangerous instruments as defined in KRS 500.080, any controlled substances, any quantity of an alcoholic beverage, and any quantity of marijuana, cell phones, and saws, files, and similar metal cutting instruments[.]We have previously noted that "[i]n defining dangerous contraband in KRS 520.010, the state legislature articulated a clear public policy concerning the presence of contraband which would endanger the safety or security of a detention facility or the persons therein." Commonwealth v. O'Hara, 793 S.W.2d 840, 843 (Ky. App. 1990). CPP 9.6(II)(A)(8) includes within the definition of dangerous contraband "[a]ny tobacco products, simulated tobacco products, nicotine patches, lighters, or matches." Furthermore, CPP 9.6(II)(A)(1) includes "[a]ny gun, firearm, weapon, sharp instrument, knife, unauthorized tool, or any other object which may be used to do bodily harm or facilitate escape."
Brown makes a variety of arguments to the effect that because he was smoking tea he could not be charged with possession or promotion of dangerous contraband. We disagree. Even assuming that Brown did not have tobacco, or a lighter or a match, and even if Brown did not light the "cigarette," the lit "cigarette" itself could constitute dangerous contraband because it could potentially be used to light a fire. The effect of a fire, especially in a crowded prison, may be potentially devastating; a fire could result in increased opportunities and the increased potential for bodily harm among inmates and staff. Therefore, a lit object clearly fits within the parameters of CPP 9.6(II)(A)(1). Any object that may be used to start a fire is also "capable of use to endanger the safety or security of a detention facility or persons therein" under KRS 520.010(3).
Because the Kentucky Department of Corrections did not err in classifying a lit object as "dangerous contraband," the Lyon Circuit Court's order dismissing Brown's prison disciplinary action is therefore affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher Brown
Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Brenn O. Combs
Department of Corrections
Frankfort, Kentucky