Opinion
NO. 2014-CA-000947-MR
03-13-2015
JUSTIN KIRK APPELLANT v. COMMONWEALTH OF KENTUCKY, DEPARTMENT OF CORRECTIONS; AND DON BOTTOMS APPELLEES
BRIEF FOR APPELLANT: Justin Kirk, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Edward A. Baylous II Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 13-CI-01168
OPINION
AFFIRMING
BEFORE: COMBS, J. LAMBERT, AND MAZE, JUDGES. J. LAMBERT, JUDGE: Justin Kirk, proceeding pro se, has appealed from the decision of the Franklin Circuit Court dismissing his petition for declaration of rights in which he sought review of the penalties imposed by the Department of Corrections for rule violations he committed while at the Bluegrass Career Development Center. Finding no error, we affirm.
Kirk is currently in the custody of the Department of Corrections (DOC) as a result of his 2006 felony drug convictions in Simpson Circuit Court, for which he is serving a twenty-six-year sentence. In November 2012, Kirk was transferred to the Bluegrass Career Development Center (BCDC), a halfway house in Richmond, Kentucky. BCDC is run by the Bluegrass Regional Recycling Corp., which houses DOC inmates pursuant to a contract with the DOC. Through this placement, Kirk was assigned to work at the Telford Community Center YMCA in Richmond. The rule violations forming the basis of this appeal took place during the time he was working at the YMCA.
The first incident took place on June 21, 2013. That evening, two BCDC staff members performed an audit on a telephone Kirk was using, observing him through a camera. Larry Mitchell was listening in on a conversation between Kirk and an unidentified woman, who spoke about obtaining a membership at the YMCA where Kirk was working so that she could see and speak with him while he was there. Kirk also asked this woman where to get "spice," and she told him where it could be purchased. Kirk said that he would give her money to buy "spice" for him. At the end of the call, Kirk said that he would see her on Monday.
The second incident took place on the evening of June 25, 2013, when BCDC staff member Jacob Carter performed another telephone audit on Kirk while he was talking with the same women from the earlier audit. During this conversation, Kirk and the woman talked about their sexual exploits that had taken place that day at work. They had gone upstairs to a room and had sex multiple times. The woman said they would go to that room every day until she left, which was Thursday. Carter indicated that the woman might be an employee and was quitting in a few days. The woman also told Kirk that she thought she was pregnant. Kirk replied that they should not be talking about this subject because he was worried that he would be transferred to another location. YMCA staff member Steven Bailey investigated the location described in the conversation, and he found a curtain had been placed over a door window. In addition, he found napkins in the trash can with a substances appearing to be semen.
Disciplinary report forms were completed for both incidents in July 2013, and Kirk was charged with pursuing/having a non-correctional relationship with a non-inmate and inappropriate sexual behavior with another person. The reports included a copy of the visitation log from the Madison County Detention Center dated July 6, 2013, listing a female visitor for Kirk with the name of LaQueeta Penman. Ms. Penman was a volunteer at the YMCA when Kirk was assigned to work there.
Investigating Officer William Elam spoke with Kirk about the reports. Regarding the first incident, Kirk "had no statement denying the information in the report that he was talking to this woman on the phone about meeting her at the YMCA." Kirk made the same response related to the second incident. Kirk received copies of the reports and requested the audio recordings of the telephone conversations. A hearing was scheduled for July 22, 2013, and was later rescheduled for July 31, 2013.
At the hearing, Kirk entered a not guilty plea to the first charge, and he denied the DOC's identification of the woman on the telephone call. He argued that prison officials had never identified the woman in the telephone call or provided any audio recording to support the charge. He also entered a not guilty plea to the second charge, pointing out that the substance on the napkin had not been tested and could not provide any evidence against him. After reviewing the incident reports and hearing arguments from Kirk and his inmate legal aide, the adjustment officer found him guilty of both charges.
Following the hearing, the adjustment officer entered findings related to both charges. For the first incident, the findings were as follows:
Inmate Kirk present at the hearing along with legal aide McIntosh. Inmate requested audio from the phone call as a witness and pled not guilty. At the investigation inmate had no statement denying the information in the report. Bluegrass Career Development Center was contacted about a copy of the phone calls and I was advised that they were not able to provide a copy of the phone calls. At the hearing it was talked about that they never identified this LeQueeta [sic] Penman as the person that was talked to on the phone, and talked about there is nothing that stated this person who Inmate Kirk was talking to on the phone was an employee. Inmate Kirk also stated that the only one he would call was his fiancée. I asked where She [sic] is from and around where the town was, and he stated that it was near Bowling Green. In the phone call it is talked about that she spoke about getting a membership at the YMCA so she could see him and speak to him while he is there, and then [he] gets a visit from a volunteer at the YMCA. I
don't know about half way houses, but I'm sure before they let someone work at a place it is determined of [sic] they have any ties with anyone at that work location. When and [sic] inmate goes out to a work location it is to work not to have a relationship with women there. I find inmate guilty based on the fact that on 6-21-13 Inmate Kirk was heard by BCDC staff on the residents telephone. Monitor Mitchell was listening in on a conversation between Kirk and an unidentified woman. The woman spoke about getting a membership at the YMCA so she could see him and speak to him while he is there. Upon the end of the phone call, Kirk told her that he would "see her on Monday." The Visitation log from the Madison County Detention Center the female listed as a visitor for Inmate Justin Kirk 1153496 on 7-16-13 by the name of Lequeeta [sic] Penman was herself a volunteer at the YMCA at the time Inmate Kirk was assigned to the YMCA. The information was verified by YMCA maintenance director Steven Bailey.The adjustment officer imposed 90 days of disciplinary segregation assignment days, but suspended forty-five days, as well as the forfeiture of thirty good-time days.
The findings for the second incident were as follows:
Inmate Kirk present at the hearing along with legal aide McIntosh. Inmate requested audio of the phone conversation. At the investigation inmate had no statement denying the information in the report. I tried to get a copy of the phone conversation from BCDC and they stated they are not able to provide a copy of the phone conversation. At the hearing inmate gave the definition of inappropriate sexual behavior with another person. The definition he provided is that of an inmate in prison. Inmate Kirk was at a halfway house and working on the street. Inmate legal aide talked about the report and that it said "Justin was talking to the same woman from a previous audit," and stated that was an unidentified woman. Also talked about she might be an employee and is quitting. An [sic] the part about the
napkins were found in the trash can in this room witch [sic] a substance on them which appeared to be semen. Then it is mentioned that nobody saw him having sex, and stated that there was [sic] a lot of rooms in the YMCA, and a lot of video cameras, and they would probably have video of it. Inmate Kirk was a community custody inmate. Inmate Kirk was allowed to go out and work in the community. He is to work not to go out and have sexual relationships with women at the sight [sic] of work. I find inmate guilty based on the fact that on June 25, 2013 Monitor Jacob Carter performed a phone audit on resident Justin Kirk on phone #3 at 10:00 PM. Justin was talking to the same woman from a previous audit that Monitor Mitchell performed. The two were talking about their sexual exploitations that occurred today while he was at work. They spoke about going upstairs to a room and having sex multiple times. She also said that they would go to that room every day until she leaves. She was also telling Kirk that she felt like she was pregnant. Kirk told her that they shouldn't be speaking about this because he was worried that he would be shipping [sic] from there. Based on a conversation with YMCA staff Steven Bailey who investigated the location described in the conversation Mr. Bailey found that a curtain had been placed over a door window and napkins were found in the trash can in this room with a substance on them which appeared to be semen.Based on the finding of guilt, the adjustment officer imposed 180 days of disciplinary segregation assignment, of which 90 days were suspended, and the forfeiture of 180 good-time days.
Kirk received copies of the findings and actions, and he indicated that he wanted to appeal the rulings. On August 8, 2013, the Warden Don Bottom denied Kirk's appeals, stating: "The due process requirements appear to be in order. The evidence is sufficient in order to establish a finding of guilt. The Adjustment Committee's decision will stand. Your appeal has been denied."
Kirk then filed a petition for declaration of rights in the Franklin Circuit Court pursuant to Kentucky Revised Statutes (KRS) 418.040 seeking reversal of the DOC's assessment and the penalties imposed based upon a violation of Correctional Policy and Procedures 15.6 and a lack of due process. He argued that he never received the video or telephone audio recordings for either date from prison officials, and no testing had been done on the substance found on the napkin to determine whether it was semen. The DOC moved to dismiss Kirk's petition, arguing that the findings were supported by substantial evidence and that he had received the due process to which he was entitled. By order entered March 25, 2014, the circuit court dismissed Kirk's petition, stating that a "review of the evidence reveals that sufficient evidence was presented by the Respondents to support [the DOC's] findings. Furthermore, the Petitioner received all the due process to which he was entitled." This appeal now follows.
In his brief, Kirk argues that the DOC failed to provide any direct evidence to support its claim that he pursued a non-correctional relationship or that he had inappropriate sexual behavior with another person, which violated his due process rights. The DOC, in its brief, argued that sufficient evidence was presented at the hearing to support the findings of guilt under the disciplinary rules.
In Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), the U.S. Supreme Court stated, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Citing Wolff, the U.S. Supreme Court held:
Where a prison disciplinary hearing may result in the loss of good time credits, Wolff held that the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary actions.Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985) (internal citation omitted). Also citing Wolff, the Supreme Court of Kentucky recently held:
Accordingly, an inmate facing disciplinary proceedings must be given: a hearing before any deprivation of property occurs; advance notice of the claimed violation; an opportunity to call witnesses and present documentary evidence "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals"; and a written statement by the factfinder detailing the evidence relied on and the reasons for disciplinary action.Ramirez v. Nietzel, 424 S.W.3d 911, 916 (Ky. 2014) (footnote omitted).
The Hill Court went on to observe:
Although Wolff did not require either judicial review or a specified quantum of evidence to support the factfinder's decision, the Court did note that "the provision for a written record helps to assure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental human rights may have been abridged, will act fairly." Id., at 565, 94 S.Ct., at 2979. We now hold that revocation of good time does not comport with "the minimum
requirements of procedural due process," id., at 558, 94 S.Ct., at 2976, unless the findings of the prison disciplinary board are supported by some evidence in the record.Hill, 472 U.S. at 454, 105 S.Ct. at 2773. In determining the existence of "some evidence," the Court stated, "[a]scertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id., 472 U.S. at 455-56, 105 S.Ct. at 2774 (citations omitted). See also Ramirez, 424 S.W.3d at 917 ("If 'some evidence' is satisfied, the fear of arbitrary government action is removed and no due-process violation is found."); Smith v. O'Dea, 939 S.W.2d 353 (Ky. App. 1997) (adopting the holding in Hill).
In O'Dea, this Court went on to explain the process of review for prison disciplinary actions, recognizing that the summary judgment standard applies. The Court explained:
Where, as here, principles of administrative law and appellate procedure bear upon the court's decision, the usual summary judgment analysis must be qualified. The problem is to reconcile the requirement under the general summary judgment standard to view as favorably to the non-moving party as is reasonably possible the facts and any inferences drawn therefrom, with a reviewing court's duty to acknowledge an agency's discretionary authority, its expertise, and its superior access to evidence. In these circumstances we believe summary judgment for the Corrections Department is proper if and only if the inmate's petition and any
supporting materials, construed in light of the entire agency record (including, if submitted, administrators' affidavits describing the context of their acts or decisions), [do] not raise specific, genuine issues of material fact sufficient to overcome the presumption of agency propriety, and the Department is entitled to judgment as a matter of law. The court must be sensitive to the possibility of prison abuses and not dismiss legitimate petitions merely because of unskilled presentations. Jackson v. Cain, 864 F.2d 1235 (5th Cir. 1989). However, it must also be free to respond expeditiously to meritless petitions. By requiring inmates to plead with a fairly high degree of factual specificity and by reading their allegations in light of the full agency record, courts will be better able to perform both aspects of this task.O'Dea, 939 S.W.2d at 356.
In the present case, Kirk contends that his due process rights were violated when the investigator failed to provide recordings of the telephone conversations to him or to provide these recordings to the adjustment officer prior to making his decisions, meaning that the findings of guilt were only based on what Mr. Carter and Mr. Mitchell claimed they heard. Kirk cites to the Supreme Court of Kentucky's recent opinion in Ramirez, supra, in support of his position. In Ramirez, the Supreme Court addressed the adjustment officer's reason for denying an inmate's request to admit evidence, to call a witness, and, as pertains to this case, to view security camera footage related to the incident. This disciplinary proceeding arose out of fighting between inmates at Northpoint Training Center, and the inmate requested footage of the fights to establish his alibi that he had been asleep during the fight. Because such footage might provide exculpatory evidence, the Supreme Court held that the adjustment officer "must review security footage if an inmate requests such review. We emphasize that it is entirely appropriate for prison officials to view inmate-requested footage in camera." Ramirez, 424 S.W.3d at 920 (footnote omitted). This holding did not mean that the inmate possessed the right to view the video footage: "If disclosure of such requested exculpatory evidence would not be unduly hazardous to the security of the institution, the evidence should be disclosed to the inmate. An AO may, however, articulate a legitimate reason for denying the inmate access to the evidence." Id. (footnote omitted). The Supreme Court remanded the action to the circuit court to review the security footage in camera, so long as there was a legitimate reason to prohibit the inmate from viewing the footage. Id.
We agree with the DOC that the holding in Ramirez does not mandate a reversal in this case. The record establishes that the adjustment officer attempted to obtain the recordings of the telephone conversations, but the BCDC staff was unable to provide them. Therefore, the due process requirement was met in this case. Furthermore, the reports detailing the telephone conversations and follow up investigation provided "some evidence" to support the adjustment officer's findings and imposition of sanctions.
For the foregoing reasons, the order of the Franklin Circuit Court dismissing Kirk's petition for declaration of rights is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Justin Kirk, pro se
Burgin, Kentucky
BRIEF FOR APPELLEE: Edward A. Baylous II
Frankfort, Kentucky