Opinion
No. 111,850.
2015-02-20
Jeff D. MARSHALL, Appellant, v. Rex PRYOR, (Warden), Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.Rhonda K. Levinson, of Perry and Trent, L.L.C., of Bonner Springs, for appellant.Sherri Price, special assistant attorney general, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Rhonda K. Levinson, of Perry and Trent, L.L.C., of Bonner Springs, for appellant. Sherri Price, special assistant attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeff D. Marshall, an inmate at the Lansing Correctional Facility, appeals from the district court's denial of his K.S.A. 60–1501 habeas corpus petition, arguing he was wrongly disciplined for violating K.A.R. 44–12–502, which requires inmates to “be present at the proper time and place of counts, in accordance with the orders of the principal administrator.” The district court dismissed his petition; on appeal, Marshall argues insufficient evidence supported his disciplinary conviction. Marshall also raises for the first time on appeal that his constitutional right to adequate medical care was denied and that the district court erred by summarily dismissing his petition without holding an evidentiary hearing. Because there was sufficient evidence to support Marshall's disciplinary conviction, and because alleged constitutional violations may not be raised for the first time on appeal, we affirm the district court and dismiss Marshall's constitutional claim.
Facts
On June 17, 2013, Marshall was issued a disciplinary report alleging he violated K.A.R. 44–12–304, disobeying orders, and K.A.R. 44–12–502, responsibility for count. The report stated Marshall came to the Officer in Charge (OIC) office to inquire about sick call and, during the conversation, became argumentative. The reporting officer ordered Marshall to return to his pod several times, but Marshall refused until the officer threatened to use his panic alarm. The report stated that while Marshall was at the OIC office, “count was called and x unit count was delayed due to this situation.”
A disciplinary hearing was held on June 29, 2013, at which Marshall testified that at 8:30 p.m. he approached the reporting officer at the OIC office to speak about medical issues and to ask when he could go to medical. Marshall claimed the reporting officer did not inform him that it was time for count, and his conversation with the reporting officer lasted approximately 7–10 minutes. The reporting officer testified he issued the report because Marshall refused to leave despite being ordered to return to his pod at least 5 times. The reporting officer testified his conversation with Marshall began at 8:30 p.m. but claimed he told Marshall to return to his pod when count was called. Another corrections officer who witnessed Marshall's encounter at the OIC office, Officer Frost, testified that Marshall arrived at the office before count and was still present in the office when count was called. Frost testified Marshall was ordered to return to his pod 3 or 4 times and the entire incident lasted approximately 10–12 minutes.
The hearing officer found Marshall guilty of violating K.A.R. 44–12–502, responsibility for counts, and not guilty of disobeying orders in violation of K.A.R. 44–12–304. The hearing officer supported his decision by stating it was “[b]ased on facts written in the report and sworn statements made during the hearing.” Marshall appealed the ruling to the Secretary of Corrections, alleging insufficient evidence supported the finding of guilt, but his appeal was denied on July 30, 2013.
On September 5, 2013, Marshall filed a writ of habeas corpus in the Leavenworth District Court challenging the Secretary's decision. Marshall alleged: (1) the hearing officer's findings were incomplete because they failed to include a summary of the evidence and arguments relied upon to find Marshall guilty; (2) insufficient evidence supported his conviction; (3) the Secretary of Corrections' disposition violated his procedural due process rights because it applied a “some evidence” standard; and (4) the erroneous allegations adversely affected his right to earn good time credit. The respondent, Rex Pryor, filed a motion to dismiss Marshall's petition on the basis that sufficient evidence was presented at the disciplinary hearing to support the guilty finding and that such evidence was set forth in the hearing record.
On January 14, 2014, the district court held a hearing on Pryor's motion to dismiss. At the hearing, Marshall argued the hearing officer did not state the specific facts relied upon to support his disciplinary conviction and the evidence did not support the conviction. The court remanded the disciplinary case with orders for the hearing officer to make appropriate findings of fact within 30 days. The court took the remaining issue of whether sufficient evidence supported the conviction under consideration pending submission of the hearing officer's additional findings.
In his supplemental findings filed 3 days later, the hearing officer found Marshall arrived at the OIC office at 8:30 p.m. and remained there for approximately 10 minutes before eventually following orders to return to his cell. The hearing officer also found Marshall did not return to his cell when count was called. The hearing officer cited three rules—LCF General Order 9,105 § IV; K.A.R. 44–12–502; and LCF Living Unit Rule Section I Number 12—which require an inmate to proceed directly to his cell when count is called and remain there until the count is over. Based on these policies, the hearing officer found it was more likely than not that Marshall was guilty of violating K.A.R. 44–12–502, responsibility for counts.
On March 31, 2014, after receiving the supplemental findings, the district court issued an order denying Marshall's petition, finding that with the addition of the supplemental findings submitted by the hearing officer, a sufficient written statement of the factual findings and reasons for the disciplinary conviction existed to support Marshall's conviction. The district court also denied Marshall's claim that insufficient evidence supported the conviction, finding there was some evidence the count was delayed because of Marshall's actions and the count was made more difficult by Marshall's failure to immediately return to his pod.
Marshall timely appeals.
Was There Sufficient Evidence to Support Marshall's Disciplinary Conviction?
Marshall argues he was wrongfully convicted of violating K.A.R. 44–12–502 because no evidence supported the discipline hearing officer's findings that Marshall's actions delayed the count, made it difficult, or caused the count to be inaccurate.
When reviewing a K.S.A. 60–1501 petitioner's claim of insufficient evidence, an appellate court “is required to uphold the prison officials' disciplinary action if there was ‘some evidence’ to support the prison hearing officer['s decision that the petitioner] had committed a violation.” Sammons v. Simmons, 267 Kan. 155, 159, 976 P.2d 505 (1999). Our duty “in the consideration of a K.S.A. 60–1501 petition involving disciplinary proceedings in a prison is to give ‘broad deference to prison officials in maintaining discipline in prison settings.’ [Citation omitted.]” Miller v. McKune, 38 Kan.App.2d 810, 816, 174 P.3d 891 (2006).
Administrative regulations promulgated within an agency's statutory authority “have the force and effect of law.” K.S.A. 77–425; Tonge v. Werholtz, 279 Kan. 481, 483–84, 109 P.3d 1140 (2005). Because the interpretation of a regulation is a question of law, we are not bound by the district court's judgment. See Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996).
K.A.R. 44–12–502 states: “Every inmate shall be present at the proper time and place of counts, in accordance with the orders of the principal administrator. Causing a delay that renders the count inaccurate or more difficult, or failure to be present during the count process shall be considered as fouling count.”
Marshall argues K.A.R. 44–12–502 requires inmates to be present for count in accordance with prison orders, and a disciplinary violation of K.A.R. 44–12–502 is limited to those situations in which a delay of the count causes it to be rendered inaccurate or made more difficult. Pryor agrees the regulation mandates every inmate be present at the proper time and place for count in accordance with prison orders but argues the second sentence of the regulation simply provides specific examples of potential violations of this regulation that amount to “fouling count.” He claims the first sentence does not require that an inmate's actions “foul the count” in order to violate the regulation's mandate, but that every inmate be present at the proper time and place for the count. Therefore, it was only required to show that Marshall failed to comply with “the orders of the principal administrator” to violate K.A.R. 44–12–502.
Another panel of our court addressed a disciplinary violation of K.A.R. 44–12–502 in Smith v. McKune, No. 102,111, 2009 WL 3428824 (Kan.App.2009) (unpublished opinion). In that case, Smith, an inmate, refused to stand for count even after being shown the posted order and written unit rules requiring an inmate to stand for count. Smith challenged the sufficiency of the evidence supporting his violation. The court determined “[t]he correctional officers testified that Smith's refusal to stand required them to stop, which delayed the inmate counts”; therefore, sufficient evidence supported the disciplinary hearing officer's decision. 2009 WL 3428824, at *5.
The Smith opinion does not discuss whether a violation of K.A .R. 44–12–502 required evidence of a delay and that the count was incorrect or more difficult as set out in the second sentence of the regulation. Nevertheless, the opinion supports an argument that the Department of Corrections has interpreted K.A.R. 44–12–502 to mean that a delay of the count is sufficient to violate K.A.R. 44–12–502. We agree with the agency's interpretation of the regulation that if an inmate delays the count by not being in the proper place at the proper time, he violates the first sentence of K.A.R. 44–12–502. As Pryor argues, the second sentence defines what actions constitute “fouling count,” but the first sentence does not require an inmate to “foul count” in order to violate K.A.R. 44–12–502.
The evidence shows Marshall was in the OIC office when count was called and did not immediately return to his cell as required by LCF General Order 9,105, § IV, ¶ C, which, according to the hearing officer's supplemental findings, states: “1. Inmates shall proceed directly to their cells when count is called. 2. Any Inmate refusing to proceed directly to their cell shall be subject to disciplinary proceedings.” Marshall admits the disciplinary report stated the count was delayed, and the district court found there was some evidence a delay in the count occurred and the count was made more difficult by Marshall's failure to immediately return to his pod. Our review of the record shows no evidence was ever submitted that stated or implied the count was made more difficult due to Marshall's delay. Therefore, there is insufficient evidence to support the district court's finding that the count was more difficult. However, the evidence does support the disciplinary hearing officer's decision that Marshall violated the requirement to immediately return to his cell, meaning he delayed count and violated K.A.R. 44–12–502's requirement that he be present at the proper time and place in accordance with the facility's orders.
A district court's decision may be upheld if it reached the correct result even though it relied upon the wrong ground or assigned erroneous reasons for its decision. See Hockett v. The Trees Oil Co., 292 Kan. 213, 218, 251 P.3d 65 (2011). We find the district court correctly found sufficient evidence supported Marshall's disciplinary violation conviction.
Did the District Court Err by Summarily Dismissing Marshall's Petition?
Marshall also argues he was entitled to an evidentiary hearing and the district court erred by summarily dismissing his petition without conducting one. He claims the district court needed to hold a hearing in order to determine whether his constitutional right to receive adequate medical care and treatment was violated. He argues that if he was properly exercising his constitutional right to seek medical treatment, the count delay he caused would be excused and the prison's imposition of a disciplinary conviction violated his constitutional right to seek medical treatment.
Our standard of review over a trial court's summary dismissal of a K.S.A. 60–1501 petition is well established.
“K.S.A. 60–1503 authorizes the summary dismissal of a habeas corpus petition ‘[i]f it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court.’ To avoid summary dismissal the allegations must be of a constitutional stature. Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998). In determining if this standard is met, courts must accept the facts alleged by the inmate as true. Foy v. Taylor, 26 Kan.App.2d 222, 223, 985 P.2d 1172, rev. denied 268 Kan. 886 (1999).” Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).
Pryor points out that Marshall failed to raise this alleged constitutional violation argument in his petition. Even construing Marshall's pro se petition liberally, there is no indication Marshall was raising a constitutional issue about his access to medical care. Because it was not presented, the district court did not have the opportunity to address this argument. Therefore, it is not properly before us on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011) (“issues not raised before trial court cannot be raised ... on appeal”). While there are exceptions to this rule, an appellant is required to explain why an issue that was not raised below should be considered for the first time on appeal. Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40). Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). As Marshall's constitutional claim is not properly before us, we dismiss it.
Affirmed in part and dismissed in part.