Opinion
NO. 2015-CA-000039-MR
05-20-2016
KRISTY LAWLESS APPELLANT v. JANET CONOVER, WARDEN; KRISTINE GOETZINGER, ADJUSTMENT OFFICER; AND KENTUCKY CORRECTIONAL INSTITUTION FOR WOMEN APPELLEES
BRIEF FOR APPELLANT: M. Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEES: Angela T. Dunham Justice and Public Safety Cabinet Frankfort, Kentucky
TO BE PUBLISHED APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 14-CI-00550 OPINION
REVERSING AND REMANDING BEFORE: ACREE, CHIEF JUDGE; D. LAMBERT AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: Kristy Lawless appeals from the Shelby Circuit Court's November 26, 2014 Order dismissing her petition to have the circuit court review the constitutionality of her prison disciplinary proceeding by which an Adjustment Officer (AO) found her guilty of committing physical action resulting in injury of an employee. We reverse and remand for further proceedings.
BACKGROUND
Remonia Mills, an inmate at the Kentucky Correctional Institution for Women, instigated a physical altercation with Lawless, also an inmate at the same institution. When Officer Jessica Evans and Sergeant Timothy Schmid intervened to break up the altercation, Officer Evans was injured. Officer Evans submitted a disciplinary report claiming Lawless had kicked her in the knee, causing injury.
Another officer actually submitted the report on Officer Evans's behalf.
Lawless denied kicking Officer Evans. Lawless stated she had only been trying to defend herself against the other inmate. She was charged with physical action resulting in injury of a prison employee.
Following an investigation of the incident, Kristine Goetzinger conducted a hearing as the AO. Lawless requested that several witnesses appear to testify on her behalf at the hearing. Sergeant Schmid offered this statement:
On 24 Feb. 2014, at approximately 9:40 a.m. the inmates in SMU, "B"-WING Lower were being released from their cells for rec. During this time inmate Mill, R. was accidently released from her cell. Inmate Mills upon exiting her cell began yelling at inmate Lawless, K. 182878 who was standing in front of her assigned cell. Inmate Lawless had not said anything to inmate Mills during this time. Inmate Mills continued to advance on inmate Lawless and attacked inmate Lawless who was standing in front of her cell. Inmate Mills began hitting inmate Lawless about the head, face, and upper body and pull [sic] her hair. Inmate Lawless attempted to defend herself while Correctional Officer Evans and myself separated both inmates. Upon separating them inmate
Lawless complied with all directions and had only been attempting to protect herself.(R. 22). Similarly, another inmate who witnessed the altercation reported that she did not see Lawless make any movements toward Officer Evans, and that Lawless was being as compliant as possible when officers intervened. (R. 23). Lawless also requested that the AO view the surveillance camera footage of the incident as Lawless believed it to be exculpatory.
Citing only Officer Evans's statement, the AO found Lawless guilty of the charged offense and assessed a penalty of 365 days of disciplinary segregation and the loss of 1,321 non-restorable good-time credits. The AO issued the following findings:
Inmate stated that Officer Evans was in the middle of breaking up the fight and is questioning how the officer could determine who caused the injury to her. Inmate states that she was compliant, just like the officer statement is saying, but that the other inmate was not compliant. Inmate states that she did not kick or swing on anyone when the staff were involved because she did not want to accidentally hit a staff member. Due to this report from staff that injury was caused from this inmate while trying to separate a physical altercation, I am going to find her guilty of this charge.(R. 19). Significantly, the AO made no mention of the surveillance camera footage in her determination.
Lawless appealed to the Warden, who denied the appeal.
On November 4, 2014, Lawless filed a petition for declaration of rights in Shelby Circuit Court challenging the disciplinary proceeding and alleging a violation of her Fourteenth Amendment right to due process and a fair disciplinary hearing.
About two weeks later, on November 17, 2014, the AO executed an affidavit stating:
3. . . . Per the inmate's request I reviewed the requested camera [footage].(R. 45). On the strength of that affidavit, Appellees immediately filed a motion to dismiss Lawless's petition.
4. Based upon the evidence in the record I found 'some evidence' that Inmate Lawless committed the infraction charged and found nothing in the camera footage that would alter this determination.
5. Since my determination of guilt was not based upon the camera footage but rather on the statement of the officer (the victim) regarding who injured her, I did not include any statement in my finding regarding the camera footage.
Two days later, barely giving Lawless any opportunity to respond to the dismissal motion and before she did so, the circuit court summarily dismissed the petition, finding Lawless "received due process and there is some evidence in the record to support the findings of the adjustment officer." (R. 48). The circuit court did not mention the surveillance video. This appeal followed.
STANDARD OF REVIEW
Prison disciplinary proceedings are administrative, rather than criminal, in nature. While inmates retain rights under the Due Process Clause of the United States and Kentucky Constitutions, a defendant in a prison disciplinary proceeding is not entitled to "the full panoply of rights due a defendant" in a criminal proceeding. See Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974); Smith v. O'Dea, 939 S.W.2d 353, 357-58 (Ky. App. 1997). In general, the minimal due process requirements in a prison disciplinary hearing include: (1) advance written notice of the claimed violation; (2) an opportunity to call witnesses and present a defense "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals"; and (3) a written statement by the fact-finder detailing the evidence relied on and the reasons for the disciplinary action. Wolff, 418 U.S. at 556, 94 S.Ct. at 2975; Webb v. Sharp, 223 S.W.3d 113, 117-18 (Ky. 2007). Further speaking generally, these due process requirements are met "if some evidence supports the decision by the prison disciplinary board[.]" Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). As we shall later see, however, specific holdings of the Supreme Court of the United States necessitate particular treatment of an inmate's request that the prison tribunal consider exculpatory evidence.
APPELLANT'S ARGUMENT
Lawless notes that the AO made no mention of the surveillance camera footage in her findings, and only claimed to have viewed the footage after Lawless filed her petition for declaration of rights. Lawless contends that the video footage constitutes the best evidence of what actually occurred, and it would seem logical that, if the video had indeed been viewed at the time of the hearing as requested by Lawless, it would have been referenced in the AO's written determination. Lawless further contends it is implicit in recent Kentucky precedent that the AO both document a timely viewing and consideration of the footage, and that she identify what that footage revealed. Finally, she also contends that the AO either should provide the inmate with access to the video or present a legitimate reason for denying the inmate access.
ANALYSIS
Recently, our Supreme Court gave us the answers to these questions by rendering Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014). Generally, the Court held that an adjustment officer conducting a hearing must, if requested by an inmate, review security footage and consider its weight in making her finding of guilt or innocence. Id. at 920.
Appellees argue that "review of camera footage as requested is all that Ramirez required[,]" (Appellee's brief, p. 3), and there is the suggestion that such things may be demonstrated "either at the prison disciplinary hearing or at a later proceeding like this one if the disciplinary ruling is challenged." Ramirez, 424 S.W3d at 919. The AO's affidavit presented to the circuit court, argue the Appellees, satisfied Ramirez. We are not persuaded this is all that Ramirez requires.
This Court said in Foley v. Haney that, where exculpatory evidence is offered by the inmate, "the hearing officer must review the records and indicate in his written statement that he undertook the review and whether the records confirm or contradict [the inmate's] version of events." 345 S.W.3d 861, 866 (Ky. App. 2011) (emphasis added). Ramirez did not overrule Foley, but reaffirmed it. Ramirez, 424 S.W.3d at 919 n.28.
Because there is proof in this record that the exculpatory evidence was timely considered, perhaps one could argue that the failure to document the effort in the disciplinary report itself is harmless error, notwithstanding the holding in Foley. However, we need not make that distinction because there are other, more substantive, reasons for reversing the circuit court's dismissal of the petition for declaration of rights.
First, our reading of Ramirez convinces us that Lawless is correct that she should have been provided access to the surveillance footage or given an explanation why she was not.
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 [or the AO must] articulate a legitimate reason for denying the inmate access to the evidence.Ramirez, 424 S.W.3d at 920 (emphasis added). The AO did neither. But that is not the worst of it.
We are more concerned that the surveillance footage was never reviewed by the circuit court. The Supreme Court said in Ramirez:
The circuit court should review the security footage in camera, assuming, of course, a legitimate reason is provided for prohibiting [the inmate] from viewing the tape. ". . . [P]rocedural due process requires a [circuit] court to conduct an in camera review of the evidence" to
determine whether it was indeed exculpatory and whether, in light of the new evidence, "some evidence" existed for the AO's finding of guilt.Id. (emphasis added) (quoting Felder v. McBride, 655, 656-57 (7th Cir. 2004)). The Supreme Court furthermore said:
When an inmate is unable to achieve an even minimally meaningful review of the AO's action, "perfectly arbitrary disciplinary action becomes a real possibility." And when the records of the administrative proceedings - as well as any subsequent proceedings - are devoid of any substance, meaningful judicial review is put out of inmates' reach.Id. at 918 (quoting Hensley v. Wilson, 850 F.2d 269, 282 (6th Cir. 1988)). With regard to the importance of that record, Lawless refers us to another prison discipline case, Smith v. O'Dea, that says a circuit court undertakes review of a prisoner's discipline "by reading their allegations [in their petition for a declaration of rights] in light of the full agency record[.]" 939 S.W.2d 353, 356 (Ky. App. 1997) (emphasis added).
These cases make it perfectly clear that the videotape surveillance footage must be made a part of the record to be reviewed by the circuit court, even if under seal and reviewed in camera. Ramirez, 424 S.W.3d at 920.
An inmate's attempt to prove his innocence inherently begins on an uphill climb because his credibility is already severely downgraded by his criminal conviction and proven willingness to violate the law. This makes the admission and review of material evidence that much more important. Documentary evidence cuts through the inmate's inherent credibility dilemma and presents an unvarnished version of the facts of the situation.Id. at 919-20 (emphasis added).
It is a logical and necessary extension of Ramirez that the circuit court's failure to review the surveillance footage is reversible error. We so hold.
We do not place responsibility for this reversible error entirely upon the circuit court. In this case, the surveillance video was never made a part of the record and, therefore, could not be reviewed by the circuit court.
The fact that the surveillance footage was not made a part of the record raises another question: who bears the responsibility for getting the prison disciplinary record before the circuit court? Does the prisoner who filed the petition for declaratory judgment bear that responsibility on the basis of Kentucky Rules of Civil Procedure (CR) 43.01? We conclude she does not. Rather, it is the responsibility of the state agency - the prison, through the Department of Corrections - to prepare a record for filing with the circuit court before that court declares the prisoner's rights. We reach this conclusion based on the following analysis.
CR 43.01 states:
(1) The party holding the affirmative of an issue must produce the evidence to prove it.
(2) The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side.
The Supreme Court of the United States expressly stated that its decisions "have consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts." Bounds v. Smith, 430 U.S. 817, 824, 97 S.Ct. 1491, 1496, 52 L. Ed. 2d 72 (U.S. 1977). Quoting the high court's opinion in Bounds, the Sixth Circuit Court of Appeals indicated that "'meaningful access to the courts' [includes] the opportunity to make a record for use on appeal." Childs v. Pellegrin, 822 F.2d 1382, 1385 (6th Cir. 1987).
Access to the courts cannot be meaningful if the record the prisoner made, containing a critical and potentially exculpatory videotape, never sees the light of the reviewing judges' desks. The reason this may happen is both historical and procedural.
In Kentucky, there is no right to administrative appeal of the warden's decision. Kentucky Corrections Policies and Procedures (KCPP) 15.6 Section II(F)(7). Consequently, to obtain judicial review of an adjustment hearing, prisoners petition the appropriate circuit court for a declaration of rights. O'Dea, 939 S.W.2d at 355 ("A petition for declaratory judgment . . . has become the vehicle . . . whereby inmates may seek review of their disputes with the Corrections Department"); KRS 418.040. The distinction impacts how the record gets before the court.
Kentucky Revised Statutes.
A declaration of rights action by an inmate challenging a prison disciplinary decision is technically an original action. But "[m]erely calling a proceeding an 'original action' does not make it so." Louisville Metro Health Dep't v. Highview Manor Ass'n, LLC, 319 S.W.3d 380, 383 (Ky. 2010) (footnote omitted). Kentucky jurisprudence has long contemplated that, unlike a truly original action, "'[t]he focal point for . . . judicial review [of a prisoner's petition for declaratory judgment] should be the administrative record already in existence, not some new record made initially in the reviewing court.'" O'Dea, 939 S.W.2d at 356 (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985)). Thus, an inmate's challenge of a prison disciplinary proceeding is, in practical effect, an administrative appeal notwithstanding being denominated an original declaration of rights proceeding. Louisville Metro Health Dep't, 319 S.W.3d at 383 ("An original action that is limited to a review of the record . . . is in fact an administrative appeal.").
In administrative appeals, the onus is on the agency to maintain and create the record of its proceedings. Monumental Life Ins. Co. v. The Dep't of Revenue, 201 S.W.3d 500, 501 (Ky. App. 2006) (the burden is on an "administrative agency to create and maintain a complete and orderly official record of the proceedings that is readily capable of review"). The Department of Corrections, not the prisoner, is responsible for ensuring the record of the disciplinary proceeding is accurate, complete, and constitutionally sufficient for judicial review. This includes assuring that any surveillance footage actually viewed, or required to be viewed, by the adjustment or hearing officer is preserved and placed in the record.
The origin for this principle stems from KRS 13B.140(3). We are mindful that prisoner disciplinary proceedings are exempt from that statutory scheme. KRS 13B.020(3)(c)2.b. But logic dictates that the concept apply in a similar fashion to prison disciplinary matters, for if ever there is a circumstance upon which the burden to create and maintain the record should fall upon the agency, it is this. See KCPP 15.6 Section II(D)(c) (prisoner may not be entitled to the documents or a summary of those documents relied upon by the hearing or adjustment officer in making his or her decision); KRS 197.025 (restricting access to prison records). --------
Ramirez emphasized that the inmate himself does not necessarily possess the right to review the videotape and it is entirely appropriate for prison officials to view inmate-requested footage in camera. 424 S.W.3d at 920. In fact, an inmate, for security reasons, may never be allowed to access or possess the video footage. Despite these limitations, an inmate does have the right to ensure a comprehensive record is compiled for the prisoner's use on appeal. Childs, 822 F.2d at 1385 (meaningful access to the courts includes the opportunity to make a record for use on appeal). A prisoner cannot be said to have had meaningful access to the courts if, despite the right to make a record at the prison, that record never makes it before any court.
SUMMARY
In this case, Lawless made a request that the Adjustment Officer review surveillance footage documenting the altercation with Mills. On appeal, Lawless questions whether the Adjustment Officer complied with her request. Her concern is reasonable considering that the Adjustment Officer's order makes no mention of the video or its contents, contrary to Foley, supra.
More problematic is the circuit court's decision to enter judgment on this administrative appeal without reviewing the whole record on appeal. Doing so is directly violative of the holding in Ramirez "to conduct an in camera review of the evidence to determine whether it was indeed exculpatory and whether, in light of the new evidence, 'some evidence' existed for the AO's finding of guilt." 424 S.W.3d at 920.
Similarly, this Court cannot review the surveillance video footage. It was the Department's burden to ensure the surveillance video was made part of the administrative record. It failed to shoulder its burden.
CONCLUSION
We conclude Lawless was denied meaningful access to the courts and denied her due process rights when the surveillance video was not made part of the administrative record and neither made available to nor viewed by the circuit court for consideration before issuing its decision. For these reasons, we reverse the Shelby Circuit Court's November 26, 2014 Order dismissing Lawless's petition for declaration of rights.
On remand, we direct the circuit court to order the Department to make available for the circuit court's consideration the surveillance video of the altercation at issue. If that tape no longer exists, we order the circuit court to order the Department to restore the good-time credit lost and to reverse Lawless's assignment to disciplinary segregation.
D. LAMBERT, JUDGE, CONCURS.
VANMETER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
VANMETER, JUDGE, DISSENTING: I respectfully dissent. The majority opinion goes well beyond what is mandated by federal or state case law concerning the due process rights of prisoners in prison disciplinary cases with respect to the record that is required to be provided to the courts and the standard of review. The only issue presented on this appeal is whether the adjustment officer reviewed the videotape of the altercation, as Lawless requested. Notwithstanding lack of mention in the hearing findings, the record contains the adjustment officer's affidavit that she reviewed the videotape and found nothing useful in resolving the charge. This was sufficient to comply with the requirement set forth in Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014). I would affirm the circuit court's determination that "some evidence" supported the infraction charged. BRIEF FOR APPELLANT: M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEES: Angela T. Dunham
Justice and Public Safety Cabinet
Frankfort, Kentucky