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Bruhn v. Heimgartner

Court of Appeals of Kansas.
Jun 12, 2015
350 P.3d 1138 (Kan. Ct. App. 2015)

Opinion

112,699.

06-12-2015

Robby C. BRUHN, Appellant, v. James HEIMGARTNER, Appellee.

Robby C. Bruhn, appellant pro se. Michael J. Smith, of Kansas Department of Corrections, for appellee.


Robby C. Bruhn, appellant pro se.

Michael J. Smith, of Kansas Department of Corrections, for appellee.

Before POWELL, P.J., McANANY, J., and BUKATY, S.J.

MEMORANDUM OPINION

PER CURIAM.

Robby C. Bruhn, an inmate at the El Dorado Correctional Facility (EDCF), was found guilty following a disciplinary hearing of violating administrative regulations that prohibit undue familiarity with a prison employee. He then filed a petition for habeas corpus relief under K.S.A.2014 Supp. 60–1501 in the district court alleging that his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution were violated during those proceedings and the evidence against him was insufficient to support the finding of his guilt. The court denied the requested relief and dismissed the case. In this appeal, we find the district court did not err in summarily dismissing Bruhn's petition and we affirm.

Facts

This case involves prison policies and procedures established by the Kansas Department of Corrections (KDOC) and administrative regulations (K.A.R.) that prohibit prison personnel and inmates from engaging or participating in any type of personal relationships, which is commonly referred to as “undue familiarity.” See K.A.R. 44–12–328 (directing “[n]o inmate shall solicit, encourage, establish, or participate in any type of personal relationship with any staff member, contract personnel, volunteer, or employee of any other organization in charge of the inmate”); Internal Management Policy and Procedure (IMPP) 02–118 (precluding “[c]onversation, contact, personal or business dealing between an employee and offender which is unnecessary, not a part of the employee's duties, and related to a personal relationship or purpose rather than a legitimate correctional purpose”). More specifically, it concerns the propriety of disciplinary sanctions imposed on Robby Bruhn for violating these regulations while he was in administrative segregation at EDCF.

Those sanctions resulted from an investigations conducted by the Enforcement, Apprehensions and Investigation Unit (EAI) at EDCF in early 2014 after receiving reports that an inexperienced female prison guard (Bailey) might be unduly familiar with Bruhn. Bailey eventually admitted to EAI investigator J.D. Griffitts that she and Bruhn had been passing personal notes and corresponding via mail for more than a month. According to Bailey, Bruhn told her that he loved her and they discussed possibly getting married upon his release. A search of Bruhn's cell revealed several notes and letters that matched known handwriting samples of Bailey and Bruhn.

As a result of that investigation, prison officials served Bruhn with a disciplinary report charging him with undue familiarity in violation of K.A.R. 44–12–328(a), which he refused to sign. The prison also terminated Bailey's employment for her violation of IMPP 02–118.

A hearing officer found Bruhn guilty as charged by a preponderance of the evidence presented at a subsequent hearing at which Bruhn and Griffitts testified. As a sanction, the hearing officer placed Bruhn in 30 days of disciplinary segregation, fined him $20, restricted his privileges, and took away 90 days of his earned good time credit.

After exhausting his administrative remedies, Bruhn timely petitioned the district court for habeas corpus relief under K.S.A.2014 Supp. 60–1501. In that petition, Bruhn alleged: (1) He was not properly advised that he was under EAI investigation; (2) he was deprived of an adequate opportunity to prepare a defense because (a) he was not provided copies of the physical evidence against him, and (b) the disciplinary report did not identify the “staff member” with whom he was charged with being unduly familiar; (3) the evidence against him was insufficient; and (4) he was denied his right to call witnesses because prison officials never gave him proper witness request forms.

In his response, the warden alleged Bruhn's petition should be dismissed for failure to state a claim upon which relief could be granted. In reply, Bruhn argued a full evidentiary hearing was necessary before the district court could resolve factual questions he raised in his petition. The court summarily dismissed Bruhn's petition for failure to state a claim.

Bruhn filed this timely appeal. In his well written pro se brief, he raises seven issues: (1) The hearing officer refused to allow him to call witnesses in aid of his defense; (2) the warden failed to adequately apprise him of the charges in advance of the hearing; (3) the hearing officer considered documentary evidence outside of Bruhn's presence; (4) the hearing officer failed to remain fair and impartial; (5) the hearing officer failed to provide a complete and accurate written record of the disciplinary hearing; (6) the warden failed to meet his burden of proving him guilty of undue unfamiliarity; and (7) the EAI officer failed to provide Bruhn adequate written notice that he was under investigation. The warden has grouped his arguments into two issues: (1) whether the disciplinary process violated Bruhn's procedural due process rights; and (2) whether the evidence sufficiently supports his resulting disciplinary sanction.

The Governing Law and Our Standard of Review

To establish a viable due process claim, the inmate must make a threshold showing of an improper deprivation of a protected life, liberty, or property interest without due process. See Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). Here, the $20 fine implicates a protected property interest and the loss of earned good time credits implicates a protected liberty interest. See Kesterson v. State, 276 Kan. 732, Syl. ¶ 2, 79 P.3d 1074 (2003) (earned good time credits); Sauls v. McKune, 45 Kan.App.2d 915, 920, 260 P.3d 95 (2011) (fine).

Second, the inmate must establish a due process violation occurred in the prison disciplinary proceeding. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), is “the benchmark case defining what process is required for prison disciplinary proceedings.” In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001). That due process includes “an impartial hearing, a written notice of the charges to enable inmates to prepare a defense, a written statement of the findings by the factfinders as to the evidence and the reasons for the decision, and the opportunity to call witnesses and present documentary evidence.” Pierpoint, 271 Kan. at 627 (citing Wolff, 418 U.S. at 563–66 ). K.A.R. 44–13–201 through 44–13–610 set forth regulations governing prison disciplinary proceedings designed to satisfy these requirements.

When determining whether a K.S.A.2014 Supp. 60–1501 petition states a claim for relief, the district court must accept as true the allegations in the petition, reviewing them along with the contents of any attachments to determine if the petition alleges “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). When, as here, the district court summarily dismisses a 60–1501 petition for failure to state such a claim, this court conducts an independent review of the petition and the records under these same standards to determine if a proper claim has been stated, owing no deference to the district court. Johnson v. State, 289 Kan. 642, 648–49, 215 P.3d 575 (2009).

As we stated, Bruhn raises seven arguments on appeal that he claims support his contention that he suffered a due process violation and the district court erred in summarily dismissing his petition. We will address them each in turn.

The Denial of the Right to Call Witnesses

In the heading to his first issue, Bruhn complains the hearing officer violated his due process rights when he refused to allow him to call witnesses and present evidence. The actual gist of his argument, however, is that he was never provided with witness request forms needed to call witnesses.

Bruhn argued in his habeas petition and in his appellate brief that officials never provided him with the form or forms required for him to request witnesses. See K.A.R. 44–13–306 (discussing inmate's responsibilities in completing authorized witness request forms). He claims he requested them on more than one occasion but was told that because he refused to sign the disciplinary report, they would not be provided. The hearing officer's notes indicate that the forms were served on Bruhn along with the disciplinary report by a prison employee. Obviously, the evidence on the issue is contradictory. Consequently, we will accept as true Bruhn's statements that he was denied the forms to request witnesses.

However, where Bruhn's argument fails is that he has consistently complained only generally about not receiving authorized witness request forms; he has never identified the relevant witnesses, either in the district court or on appeal, he was precluded from calling. Nor has he ever proffered what their testimony might have shown. These omissions render his claim of a procedural due process violation based on the alleged deprivation of an opportunity to call witnesses insufficient to survive summary dismissal. Cf. Cross v. Kansas Dept. of Revenue, 279 Kan. 501, 513, 110 P.3d 438 (2005) (refusing appellant's invitation “to speculate that ‘other relevant witnesses' existed who were denied access to her administrative hearing by the operation of K.S.A. 8–1020(g),” where licensee failed to identify any such witnesses below or proffer their testimony at either administrative hearing or trial de novo, noting instead that appellate court must limit its review to evidence of record and base its decision on facts in record); Hogue v. Bruce, 279 Kan. 848, 855–56, 113 P.3d 234 (2005) (quoting Anderson v. McKune, 23 Kan.App.2d 803, 811, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 [1997], in recognizing: “ ‘The mere fact that a hearing officer in a prison discipline case has not followed DOC procedural regulations does not of itself violate fundamental fairness that rises to an unconstitutional level. Without much more, a petition for habeas corpus alleging procedural errors at a prison disciplinary hearing must fail.’ ”).

Notice of the Nature of the Charges

In his second issue, Bruhn alleges a violation of his procedural due process right to receive advance written notice of the nature of the disciplinary charge against him to enable him to prepare a defense. More specifically, he complains the disciplinary report failed to sufficiently notify him of the details of the charge against him because it did not identify the “staff member” with whom he was alleged to be unduly familiar.

We mention again that at this stage of the proceedings, our sole task is to determine whether, taking Bruhn's allegations in his K.S.A.2014 Supp. 60–1501 petition as true, he stated a claim of shocking and intolerable conduct or continuing mistreatment of a constitutional stature so as to survive the summary dismissal of his 60–1501 petition. See Johnson, 289 Kan. at 648.

A disciplinary report does not need to detail the evidence against an inmate. Rather, it need only afford “adequate notice of the nature of the charges.” Swafford v. McKune, 46 Kan.App.2d 325, 329, 263 P.3d 791 (2011), rev. denied 294 Kan. 948 (2012). To reiterate, Bruhn was charged with undue familiarity in violation of K.A.R. 44–12–328, which provides: “No inmate shall solicit, encourage, establish, or participate in any type of personal relationship with any staff member, contract personnel, volunteer, or employee of any other organization in charge of the inmate.” Arguably, the identity of the person with whom an inmate is alleged to have been unduly familiar could be necessary to preparation of a defense. In some cases, an allegation that the identity was lacking might be sufficient to survive summary dismissal of a due process claim based on that omission. But that is not the case here because the hearing officer's notes indicate that Bruhn wholly denied “‘any participation is undue w[ith] any staff member.’ “ (Emphasis added.) Obviously then, the identity of the staff member was not critical to Bruhn's defense.

Simply put, there is no indication that Bruhn ever argued below that he was unable to defend himself because he did not know the identity of the staff member. Nor did Bruhn allege in his K.S.A.2014 Supp. 60–1501 petition (or in his brief, for that matter) how his complete-denial defense might have varied had Bailey's identity been disclosed prior to the hearing. Stated another way, Bruhn has never alleged or explained how the failure to name Bailey as the staff member hindered his defense or denied him his right to an impartial hearing. Nor has he so indicated in his brief on appeal.

We conclude that Bruhn's general allegations in his petition based on the failure to identify Bailey as the staff member with whom he was alleged to have been unduly familiar in the disciplinary report are insufficient to state a claim of shocking and intolerable conduct.

Hearing Officer's Consideration of Evidence Outside of Bruhn's Presence

In his third issue, Bruhn complains his due process rights were violated because the hearing officer considered Griffitts' report, which the warden attached to his answer to Bruhn's petition, outside of Bruhn's presence.

According to Bruhn, the indication in Griffitts' investigation report that Bailey initially denied that she had any sort of personal relationship with Bruhn constitutes exculpatory evidence which he had a due process right to have disclosed to him before the hearing. In support, Bruhn suggests his case is like Chavis v. Rowe, 643 F.2d 1281 (7th Cir.1981). There, the Seventh Circuit Court of Appeals held in an action under 42 U.S.C. § 1983 that prison officials' failure to disclose materially exculpatory evidence in a prison disciplinary proceeding violated the inmate's due process rights and was not harmless error. 643 F.2d at 1285–86.

The problem with Bruhn's argument is that the evidence he claims was improperly withheld from him was not exculpatory. In other contexts, our Supreme Court has held: “Exculpatory evidence tends to disprove a fact in issue that is material to guilt. [Citation omitted.] ‘Evidence is material if it might have created reasonable doubt and affected the outcome of the trial.’ “ State v. Trammell, 278 Kan. 265, 284, 92 P.3d 1101 (2004) (citing State v.. Aikins, 261 Kan. 346, 383, 932 P.2d 408 [1997] ). Given the fact that Bailey subsequently confessed to Griffitts her personal relationship with Bruhn, her initial denial can hardly be deemed material and exculpatory by these standards. So, even if we were to follow the reasoning in Chavis, which no court in Kansas has done to date, this case is distinguishable. Accord Howard v. United States Bureau of Prisons, 487 F.3d 808, 814 n. 4 (10th Cir.2007) (finding it unnecessary to decide whether to follow Seventh Circuit's line of cases that “has vigorously enforced a long-standing rule requiring government disclosure of exculpatory evidence in prison disciplinary proceedings, ‘unless that disclosure would unduly threaten institutional concerns' ”).

Hearing Officer's Failure to Remain Impartial

In his fourth issue, Bruhn summarily contends the hearing officer failed to remain impartial in his role as a factfinder and advocated against him.

In his brief on appeal, Bruhn argues the hearing officer failed to remain impartial because he denied Bruhn's attempts to question Griffitts and received evidence outside of his presence. The problem is that Bruhn failed to raise any such allegations in the K.S.A.2014 Supp. 60–1501 petition. Accordingly, we will not consider them here. Even if we were to consider these allegations for the first time, they have no support in the record that we have before us on appeal.

Hearing Officer's Failure to Provide Complete and Accurate Record of the Disciplinary Hearing

In his fifth issue, Bruhn argues the hearing officer failed to provide a complete and accurate record of the disciplinary hearing. More specifically, he argues the hearing officer failed to provide a written statement stating the facts relied on and the reasons for his conclusions in support of his summary finding that Bruhn's guilt was established by a preponderance of the evidence.

Again, referring to the petition for habeas corpus which we must do in our review, Bruhn only generally alleged “that the evidence is inconclusive and therefore the Disciplinary report is in error because it fails to describe the important parts of evidence.” Clearly, this is a conclusory allegation. However, if we consider this claim in the petition as supplemented with his contentions in his appellate brief, it appears to be true, as Bruhn points out, that the hearing officer did not clearly state what the evidence was that provided the basis for his conclusion that Bruhn was guilty of undue familiarity. Such a detailed statement is required by K.A.R. 44–13–502a. The only evidence the hearing officer detailed was:

• A finding that Bruhn was served with the disciplinary report and request for witness form but refused to sign or participate in the disciplinary process, thus, the serving officer entered a plea of not guilty on Bruhn's behalf;

• Bruhn's general denial that he was ever unduly familiar with anyone;

• Summaries of Griffitts' testimony, which was apparently in response to questions asked by Bruhn, that: (1) he did not have to notify Bruhn that he was under EAI investigation; and (2) some of the evidence in support of the undue familiarity charge came from the search of Bruhn's cell and other evidence was turned in by the “staff member.”

However, this does not require that we remand for further proceedings on this allegation of a procedural due process violation under the facts of this case. In a nutshell, it appears the purpose of any such remand would be to establish whether the record is sufficient to conclude that “some” evidence supported Bruhn's conviction for undue familiarity. We find that because Bruhn has not briefed any challenge to the sufficiency of the evidence to support his conviction of undue familiarity, any failure by the hearing officer to detail the evidence upon which he relied is harmless. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) (recognizing issues not briefed by appellant are deemed waived and abandoned).

Certainly, the better practice would have been for the hearing officer to have prepared a more detailed statement of the facts relied on and reasons for his conclusions in support of his summary finding that Bruhn's guilt was established by a preponderance of the evidence. However, we find that Bruhn suffered no prejudice from the lack of such details in the statement the hearing officer did write. That statement (which Bruhn had attached to his petition) clearly contained “some” evidence within it that supports the finding that Bruhn committed the charged violation. See Sammons v.. Simmons, 267 Kan. 155, 158–59, 976 P.2d 505 (1999) (quoting and discussing Superintendent v. Hill, 472 U.S. 445, 455–57, 105 S.Ct. 2768, 86 L.Ed.2d 356 [1985], in holding that on review of prisoner's challenge to sufficiency of evidence to support disciplinary action involving protected interest, appellate court must determine “ ‘ “whether there is any evidence in the record that could support the conclusion reached” ‘ “; and reversal proper only when there is not at least “ ‘some evidence’ “ supporting decision). The hearing officer's statement references the disciplinary report prepared by Griffitts (which Bruhn also attached to his petition) in which Griffitts mentioned the admissions Bailey made to him and letters found in Bruhn's cell confirming the relationship she had with Bruhn.

In summary, we conclude that Bruhn's petition along with the documents attached to it failed to set forth the requisite “shocking and intolerable conduct or continuing mistreatment of a constitutional nature” with regard to the hearing officer's record of the disciplinary hearing that is necessary to state a due process claim. See, Schuyler, 285 Kan. at 679.

Failure to Conform to Prison Policies and Procedures

In his sixth issue, Bruhn only generally alleges that “prison officials failed to conform to the policies and procedures,” thereby failing “to insure that [Bruhn] would be protected from a miscarriage in justice,” i.e., that his due process rights were not violated. We reject this summary contention because it is not supported by any authority or otherwise properly briefed. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013) (noting that failure to support point with pertinent authority or show why it is sound despite a lack of supporting authority or in face of contrary authority is akin to failing to brief issue).

EAI's Failure to Inform Bruhn He Was Under Investigation

In his seventh and final issue, Bruhn briefly complains of a violation of his right to be notified that he was under investigation by EAI under IMPP 20–104(I)(B)(2)(b). That IMPP governs when an inmate may be placed in administrative segregation pending the results of an investigation. It is simply not applicable to the facts here. The record indicates that at the time leading up to the disciplinary proceedings at issue here, Bruhn had been in administrative segregation since 2013 due to safety and security concerns. He was not there temporarily because of the investigation in this case. Thus, he was not entitled to the notice or explanation for continued investigatory segregation under IMPP 20–104(I)(B)(2)(b).

Conclusion

We conclude that the district court did not err in summarily dismissing Bruhn's petition because it did not adequately state allegations that made a threshold showing that he suffered a deprivation of a protected life, liberty, or property interest without due process, during his prison disciplinary proceedings.

Affirmed.


Summaries of

Bruhn v. Heimgartner

Court of Appeals of Kansas.
Jun 12, 2015
350 P.3d 1138 (Kan. Ct. App. 2015)
Case details for

Bruhn v. Heimgartner

Case Details

Full title:Robby C. BRUHN, Appellant, v. James HEIMGARTNER, Appellee.

Court:Court of Appeals of Kansas.

Date published: Jun 12, 2015

Citations

350 P.3d 1138 (Kan. Ct. App. 2015)