Opinion
No. 107,220.
2012-07-6
Roberto HONEYCUTT, Appellant, v. Sam CLINE, et al., Appellees.
Appeal from Reno District Court; Joseph L. McCarville III, Judge. Sam S. Kepfield, of Hutchinson, for appellant. Jon D. Graves, of Kansas Department of Corrections, for appellee.
Appeal from Reno District Court; Joseph L. McCarville III, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Jon D. Graves, of Kansas Department of Corrections, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Roberto Honeycutt appeals the district court's dismissal of his K . S.A. 60–1501 petition, which stemmed from a disciplinary proceeding at Hutchinson Correctional Facility (HCF). Because we conclude that Honeycutt has failed to establish a violation of a protected liberty or property interest, we affirm the district court's dismissal of the K.S.A. 60–1501 petition.
Honeycutt is an inmate at HCF. On January 24, 2011, Honeycutt placed a call from HCF to an outside phone number and asked the person he called to leave a message at a specified e-mail address, leave a message on Facebook for a third party, and search on Facebook for yet another person. As a result of these actions, a disciplinary report was filed, citing Honeycutt with violating K.A.R. 44–12–212, which prohibits accessing unauthorized computer-based information. Following a meeting between Honeycutt and HCF Warden Sam Cline, Cline dismissed the disciplinary report prior to any hearing.
On June 9, 2011, Honeycutt telephoned his mother, who was on his approved phone list at HCF, and asked her to send a text message to a third party named Heather, who was not on Honeycutt's approved phone list. Honeycutt dictated the text message, and his mother sent the message. As a result, another disciplinary report was filed alleging that Honeycutt violated K.A.R. 44–12–211(a)(4), which prohibits the unauthorized use of a telephone. At the hearing on the disciplinary report, Honeycutt admitted that the alleged facts were true, but he asked to have the disciplinary report dismissed because Cline had dismissed the January case and Honeycutt believed the two cases were similar. The hearing officer found that Honeycutt had violated the provisions of K.A.R. 44–12–211(a)(4) and sentenced him to 14 days' disciplinary segregation and 30 days' restriction, with the sentence suspended for 120 days. Honeycutt appealed, and the Secretary of Corrections' designee issued an order upholding the hearing officer's decision.
On September 12, 2011, Honeycutt filed his petition for writ of habeas corpus pursuant to K.S.A. 60–1501. In the petition, Honeycutt admitted that he had called his mother and instructed her to send a text message to a third party not on his approved phone list. Honeycutt alleged that Cline had dismissed the January 2011 disciplinary report because Honeycutt's actions had not violated HCF regulations; and this dismissal meant that his subsequent actions in June 2011 did not violate the regulations. Honeycutt asserted that his due process rights were violated because he did not receive fair notice that he could no longer ask people on his approved phone list to send text messages to people who are not on his approved phone list. Honeycutt also argued that K.A.R. 44–12–211(a)(4) was unconstitutionally vague and that his actions did not violate the regulation.
On October 7, 2011, the Kansas Department of Corrections (KDOC) filed an answer to Honeycutt's petition and a motion to dismiss for failure to state a claim upon which relief may be granted. The KDOC asserted that there was some evidence to support the hearing officer's decision; therefore, the district court should affirm. The KDOC also argued that Honeycutt failed to establish a violation of a protected liberty interest because he only received 14 days' disciplinary segregation and 30 days' restriction, with the sentence suspended for 120 days. Thus, the KDOC argued that the district court should summarily dismiss the petition and assess costs against Honeycutt.
On November 3, 2011, the district court held a hearing on the K.S .A. 60–1501 petition. At the hearing, Honeycutt argued that the facts of the January and June incidents were identical, and he again asserted that his due process rights were violated because he did not receive fair notice that his actions were prohibited. Further, Honeycutt argued that K.A.R. 44–12–211 prohibits only phone calls and his actions involved a text message; accordingly, he did not violate the regulation. The KDOC pointed out that the January disciplinary report was based on an alleged violation of K.A.R. 44–12–212, while the June disciplinary report was based on an alleged violation of K.A.R. 44–12–211(a). Thus, the KDOC argued that the dismissal of the January disciplinary report did not establish that Honeycutt's actions in June were permissible. Furthermore, the KDOC argued that Honeycutt failed to establish a violation of a protected liberty interest.
After hearing argument, the district court found that Honeycutt's actions violated K.A.R. 44–12–211(a)(4). The district court found that the January disciplinary report was dismissed because the facts did not constitute a violation of K.A.R. 44–12–212, but that dismissal did not affect the June disciplinary report because it alleged a violation of a different regulation, K.A.R. 44–12–211(a)(4). Because the January disciplinary report alleged a violation of an entirely different regulation, the district court rejected Honeycutt's claim that he failed to receive fair notice that his actions in requesting the text messaging were prohibited. Accordingly, the district court dismissed Honeycutt's K.S.A. 60–1501 petition. Honeycutt timely appealed the district court's decision.
On appeal, Honeycutt argues that his actions in requesting the text messaging did not violate K.A.R. 44–12–211(a)(4) and therefore the district court erred in dismissing his K.S.A. 60–1501 petition. Honeycutt does not argue that his due process rights were violated because he did not receive fair notice that his actions were prohibited. An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). The KDOC argues that there is some evidence to support the hearing officer's finding that Honeycutt violated K.A.R. 44–12–211(a)(4). The KDOC also argues that Honeycutt has failed to establish a violation of a protected liberty interest because he only received 14 days' disciplinary segregation and 30 days' restriction for the violation and the sentence was suspended for 120 days.
We initially will address the KDOC's argument that Honeycutt has failed to establish a violation of a protected liberty interest. In determining whether a K.S.A. 60–1501 petition states a claim for relief, the district court examines the allegations in the petition and 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). A two-step analysis is employed in reviewing an inmate's claim of due process violations. First, the court must determine whether the State has deprived the inmate of life, liberty, or property. Second, if there has been such a deprivation through State action, the court determines the extent and nature of the process which is due. Hogue v. Bruce, 279 Kan. 848, 850–51, 113 P.3d 234 (2005). In Kansas, an inmate has the burden of proving a violation of his or her constitutional rights in a habeas proceeding. Starr v. Bruce, 35 Kan.App.2d 11, 12, 129 P.3d 583 (2005), rev. denied 280 Kan. 984 (2006). Thus, in order to prevail on a due process claim, an inmate must establish that he or she had a definite liberty or property interest and that such interest was, under color of state law, abridged without appropriate process. See Murphy v. Nelson, 260 Kan. 589, 598, 921 P.2d 1225 (1996).
Kansas courts have held that the imposition of privilege restrictions within a correctional facility fails to establish a violation of an inmate's protected liberty interest. See Ramirez v. State, 23 Kan.App.2d 445, 447, 931 P.2d 1265 (court determined as a matter of law that 30 days' loss of privileges does not constitute an atypical and significant hardship for purposes of a due process analysis), rev. denied 262 Kan. 962 (1997); Davis v. Finney, 21 Kan.App.2d 547, 559, 902 P.2d 498 (1995) (imposition of 45 days' disciplinary segregation and 60 days of restriction of privileges within a prison facility did not violate a protected liberty interest). However, the imposition of a fine deprives an inmate of property, and in that situation the inmate is entitled to receive a minimum level of due process. See Sauls v. McKune, 45 Kan.App.2d 915, 920, 260 P.3d 95(2011).
Here, we need not consider the merits of the issues Honeycutt has raised on appeal because Honeycutt's only sanction for the disciplinary violation was 14 days' disciplinary segregation and 30 days' restriction. And the record does not reflect that these sanctions were ever imposed on Honeycutt because his sentence was suspended for 120 days. Honeycutt received no fine or loss of good-time credit as a result of the disciplinary violation. Because Honeycutt has failed to establish a violation of his protected liberty or property interests, we conclude that Honeycutt's K.S.A. 60–1501 petition fails to state a claim for which relief can be granted. Accordingly, the district court did not err in dismissing the petition. If the district court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007).
Affirmed.