Opinion
No. 107,670.
2012-10-5
De'mont S. HOPSON, Appellant, v. Ray ROBERTS, Secretary of Corrections, et al., Appellees.
Appeal from Cowley District Court, James T. Pringle, Jr., Judge. Matthew W. Wilson, of Winfield, for appellant. Julie St. Peter, of Kansas Department of Corrections, of El Dorado, for appellees.
Appeal from Cowley District Court, James T. Pringle, Jr., Judge.
Matthew W. Wilson, of Winfield, for appellant. Julie St. Peter, of Kansas Department of Corrections, of El Dorado, for appellees.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
De'mont S. Hopson, a prison inmate, appeals the district court's summary dissolution of his K.S.A. 60–1501 petition. Hopson raised claims in his petition that he was denied various constitutional rights in connection with prison disciplinary proceedings.
Hopson filed a petition for a writ of habeas corpus under K.S.A. 60–1501. K.S.A.2010 Supp. 60–1503(a) required the district court to review the petition to determine from the face of the petition and any attached exhibits whether it plainly appeared that the plaintiff was not entitled to relief. If the court found that the plaintiff might be entitled to relief, the court had to issue a writ requiring the defendant to answer. Otherwise, “the petition shall be dissolved at the cost of the plaintiff.” K.S.A.2010 Supp. 60–1503(a). Here, the Secretary answered the petition before the district court did its gatekeeping analysis under K.S.A. 60–1503(a).
In its answer, the Secretary asserted that there was some evidence to support the finding of the hearing officer and that Hopson was afforded the basic due process protections required by law. The Secretary's answer contained a 15–paragraph statement of facts regarding the prison disciplinary proceedings.
Thereafter, the district court summarily dissolved Hopson's K.S.A. 60–1501 petition, concluding:
“1. The Petitioner in this matter has failed to meet the threshold requirement for allowing relief in a habeas corpus matter. There is no evidence that a constitutional violation has occurred nor is there evidence of an arbitrary or capricious act on the part of prison officials.
“2. Some evidence exists to support the finding of guilt by the disciplinary hearing officer. The Petitioner was offered the basic requirements of due process in this disciplinary hearing. The discipline imposed in this case was within the parameters outlined in the Kansas Administrative Regulations.
“3. It plainly appears from the face of the petition and exhibits attached thereto that the petitioner is not entitled to relief.”
On appeal, Hopson claims the district court erred in summarily dissolving his petition because his due process right to an impartial hearing officer was violated when the hearing officer refused to consider as evidence a videotape of the incident.
We review de novo the district court's summary dismissal of a petitioner's K.S.A. 60–1501 claim. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). In reviewing the petitioner's claims, we must determine whether the petitioner alleged “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008).
Here, the district court summarily dismissed Hopson's petition after making findings of fact not contained in Hopson's petition but asserted by the State in its answer. This is not the process contemplated by K.S.A.2010 Supp. 60–1503(a). But since our review is de novo, we review Hopson's petition and its attachments to make our own evaluation of whether Hopson stated an actionable claim.
Regarding the issue on appeal, and disregarding Hopson's legal arguments and asserted legal conclusions in his petition, Hopson's petition alleged the following:
“14) COI Gier stated on February 12, 2011 at 7:30 pm while monitoring the cameras in the library from the control center witness inmate Smith, Mario 95994 place inmate Hopson in a head lock while in the library. They continued to horseplay for a few moment. I called patrol to the library to advise them to stop. Upon his arrival they denied doing such action this report was written at 8:00 pm.
....
“17) relevant: Having a bearing on or connection. The recording of what the security cameras view will show that COI Gier fabercatied the story about Mr. Smith placing me in a head lock and that I was not horseplaying around with him.
....
“19) Mr. Smith and my testimony along with the recording from the security cameras is sufficient evidence to show COI Gier lied under oath and commited perjury.
....
“25) under KAR 44–13–101 states the inmate shall be entitled to the following (c)(2) to present documentary evidence. My request for the recording was denied by CSI Mayo.”
Hopson also alleged facts related to the exhaustion of his administrative remedies. He attached to his petition the following:
The Disposition and Hearing Record showing Hopson was found guilty based on “written report and testimony.” It listed his sanctions of “10 days ROP [restriction of privileges] (is), 10 days extra duty, $10.00 fine.”
Hopson's Disciplinary Appeal to the Secretary, documenting the bases for his appeal.
A section of the Disposition of Disciplinary Case record summarizing the disciplinary hearing, Hopson's request to call inmate Smith as a witness, the written reports from Gier, the testimony of Hopson and Smith, Hopson's closing statement, the finding of guilt, the reasons therefor, and the sanctions imposed.
The Disciplinary Report of the incident.
Gier's Narrative Report, which supplements the Disciplinary Report.
Hopson claims that his due process right to present evidence on his own behalf was violated when the hearing officer failed to review videotape evidence of the incident in the library. Hopson has the burden of proving a violation of his constitutional rights. See Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505 (1999); Starr v. Bruce, 35 Kan.App.2d 11, 12, 129 P.3d 583 (2005), rev. denied 280 Kan. 984 (2006).
There is no indication in the record of the disciplinary proceedings attached to Hopson's petition that he requested that the hearing officer review videotape evidence of the incident. Hopson was provided with a reasonable opportunity to call witnesses on his own behalf and to present documentary evidence at the disciplinary hearing, as provided in K.A.R. 44–13–101(c)(3) and (5). A prisoner facing a disciplinary proceeding is not afforded the full panoply of rights due a defendant in a criminal proceeding. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Due process does not require “that prison security videos be made available to inmates who are the subjects of prison disciplinary proceedings.” Swafford v. McKune, 46 Kan.App.2d 325, 331, 263 P.3d 791 (2011), rev. denied 294 Kan. –––– (filed May 21, 2012).
A K.S.A. 60–1501 appellant has the burden to designate a record sufficient to establish the claimed error. Without such a record, the claim of error fails. Fletcher v. Nelson, 253 Kan. 389, 392, 855 P.2d 940 (1993). Hopson failed to satisfy his burden of proof by the facts asserted in his petition and attachments.
There is nothing in the disciplinary record attached to the petition supporting Hopson's allegation that his “request for the recording was denied” by the hearing officer. Hopson provides no documentation to show that he ever requested that the hearing officer review a videotape, and there is no reference to such a request in the notes memorializing the disciplinary hearing. In fact, there is no evidence that the surveillance of the library was preserved on videotape or that any such videotape existed at the time of Hopson's disciplinary hearing. Officer Geir's report merely indicated that he was watching Hopson on a central monitor. Hopson did not attach to his petition a transcript of the disciplinary hearing. Hopson has failed to show that the hearing officer refused his request to present documentary evidence; there is no evidence in the disciplinary record attached to the petition that Hopson made such a request or that the evidence even existed.
Hopson was provided the basic requirements of due process in his disciplinary hearing. Accordingly, we conclude that the district court reached the correct outcome in summarily dissolving Hopson's K .S.A. 60–1501 petition.
Affirmed.