Opinion
112,210.
04-24-2015
Dustin J. MERRYFIELD, et al., Appellants, v. Tracy HANDS, Larned State Hospital Safety & Security Officer and SPTP Property Officer, et al., Appellees.
Dustin J. Merryfield, et al., appellants pro se. Kimberly M.J. Lynch, senior litigation counsel, of Kansas Department for Aging and Disability Services, of Topeka, for appellees.
Dustin J. Merryfield, et al., appellants pro se.
Kimberly M.J. Lynch, senior litigation counsel, of Kansas Department for Aging and Disability Services, of Topeka, for appellees.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Seven individuals confined in the treatment program for sexually violent predators sued various State agents contending the practice of program employees in reading packing inventories that accompany products mailed to program participants by commercial vendors violates their federally protected rights. The Pawnee County District Court dismissed the petition, brought under 42 U.S.C. § 1983 (2012), because Plaintiffs failed to establish any claimed violation of their rights secured in the First and Fourteenth Amendments to United States Constitution. Plaintiffs have appealed. We affirm but consider the issues in a somewhat different light than did the district court.
Plaintiffs have been civilly committed for treatment under the Sexually Violent Predator Act, K.S.A. 59–29a01, and are detained at a facility on the grounds of Lamed State Hospital. Persons detained as sexually violent predators may purchase various products from an approved list of companies. The products are mailed to the participants at the hospital facility. Program employees typically open the packages in the presence of the recipients to confirm the absence of contraband or other items that would interfere with the treatment regimen. In making those inspections, the employees compare the contents of the packages with any included shipping inventories or lists. We understand the contents are compared with the inventories, at least in part, to avoid accusations that program employees may have diverted items for their own use, i.e., stolen them, when the vendors never actually shipped those items.
Plaintiffs allege the employees violate K.S.A.2014 Supp. 59–29a22, colloquially called the sexually violent predators' bill of rights, when they read the shipping inventories. As provided in K.S.A.2014 Supp. 59–29a22(b)(15)(A), a detainee has the right to “receive sealed mail ... subject to physical examination ... [for] contraband materials or objects that threaten the security of patients or staff.” Under K.S.A.2014 Supp. 59–29a22(b)(15)(B)(ii), “a member of the facility treatment staff may be authorized “to read the mail” upon a showing of particularized cause related to maintaining safety or avoiding interference with treatment. The detainee has a right to be informed of the reasons for reading mail and may challenge those reasons through a grievance process. K.S.A.2014 Supp. 59–29a22(c).
As we understand Plaintiffs' claim, program employees may look at the items vendors mail to detainees consistent with K.S.A.2014 Supp. 59–29a22(b)(15)(A) but the routine reading of shipping lists in the same packages violates K.S.A.2014 Supp. 59–29a22(b)(15)(B)(ii) and (c). For purposes of resolving the appeal, we assume that much of Plaintiffs' argument to be correct, although the assumption requires an exceptionally literalistic reading of the statutory language with essentially no allowance for apparent legislative purpose or plain common sense. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013) (statutes may be construed to avoid unreasonable or absurd results).
In their petition, Plaintiffs say the practice of reading shipping inventories violates 42 U.S.C. § 1983 by depriving them of due process rights protected in the Fourteenth Amendment to the United States Constitution and some unidentified aspect of the First Amendment to the United States Constitution. The federal statute provides a mechanism for persons to seek legal relief if a government agent acting under the ostensible authority of state law has denied them rights protected in the United States Constitution or other federal law. 42 U.S.C. § 1983 (2012). So Plaintiffs cannot prevail if what they have shown violates neither the Due Process Clause nor the First Amendment. That is the controlling substantive legal issue. Plaintiffs have sued Shawn Sullivan, the Secretary of the Kansas Department for Aging and Disability Services, and nine administrators or employees of the treatment program. Given the issues and our disposition of the case, we needn't detail or differentiate among the defendants. The district court devoted much of its review to Defendants' assertion of qualified immunity. We needn't engage that issue. If Plaintiffs fail to demonstrate a violation of their federal rights, Defendants are entitled to judgment for that reason, and, in turn, there is nothing to immunize. See Plumhoff v. Rickard, 572 U.S. ––––, 134 S.Ct. 2012, 2024, 188 L.Ed.2d 1056 (2014).
Before turning to the substantive issue, we take a procedural pit stop. Plaintiffs' petition is remarkably generic to the point of being inscrutable on its face. Under notice pleading, a petition need only contain “a short and plain statement of the claim.” K.S .A. 60–208(a)(1). Lengthy factual narratives are both unnecessary and technically improper. But a petition still must afford a defendant fair notice of the nature of the dispute. Taken alone, Plaintiffs' petition probably does not. Plaintiffs, however, attached affidavits and various documents, mostly grievance forms and official responses, to their petition that set forth in some detail the circumstances. The parties and the district court relied on those documents in addressing the issues. As a result, the district court effectively entered summary judgment against Plaintiffs even though the defendants had filed a motion to dismiss. See K.S.A. 60–212(d) (if district court considers “matters outside the pleadings” in considering motion to dismiss, ruling treated as one on summary judgment); Mashaney v. Board of Indigents' Defense Services, 49 Kan.App.2d 596, 610, 313 P.3d 64 (2013), rev. granted 299 Kan. –––– (2014).
We, therefore, review the appeal as one from a grant of summary judgment. In seeking summary judgment, Defendants had the obligation to show, based on appropriate evidentiary materials, there were no disputed issues of material fact and judgment could, therefore, have been entered in their favor as a matter of law. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, Syl. ¶ 2, 308 P.3d 1238 (2013) ; Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009) ; Korytkowski v. City of Ottawa, 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53 (2007). In essence, Defendants necessarily argue there is nothing for a jury or a trial judge sitting as factfinder to decide that would make any difference. An appellate court applies the same standards in reviewing a summary judgment. Thoroughbred Assocs., 297 Kan. 1193, Syl. ¶ 2.
The affidavits and documents constitute evidence that may be considered on summary judgment. Plaintiffs point to no disputed material facts, and we perceive none. The issues the parties have framed in the district court and on appeal present questions of law.
As stated in the petition, Plaintiffs contend the practice of reading shipping inventories “unlawfully restricted [their] rights without first providing Due Process in violation of the Fourteenth Amendment[.]” This is a claim for procedural due process. Procedural due process concerns appropriate mechanisms to protect against government action erroneously stripping persons of rights or interests derived from some other legal source. Procedural due process, then, requires that a person be afforded a right to be heard in a meaningful way before being irrevocably deprived of “life, liberty, or property.” U.S. Const. amend. XIV, § 1 ; Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ [Citation omitted.]”); Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (The Due Process Clause “at a minimum” requires that “deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”). The Kansas Supreme Court similarly defines procedural due process protections. State v. King, 288 Kan. 333, 354, 204 P.3d 585 (2009) ; Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409–10, 49 P.3d 1274, cert. denied 537 U.S. 1088 (2002). State statutory or regulatory law is a common source of liberty interests or property rights commanding procedural due process protections. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (property rights); Wilkinson v. Austin, 545 U.S. 209, 221–22, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (liberty interest).
Here, Plaintiffs point to K.S.A.2014 Supp. 59–29a22(b)(15) —affording them a substantial degree of privacy in receiving mail—as a liberty interest warranting procedural due process protections. We assume that to be so. Plaintiffs, in turn, allege they have been deprived of a forum for redressing the violation of that interest or, in other words, due process. But their allegation is incorrect.
Plaintiffs, as detained sexually violent predators, have been statutorily authorized to file Chapter 60 civil actions to vindicate rights afforded them in K.S.A.2014 Supp. 59–29a22, including the limitations on review of their mail. K.S.A.2014 Supp. 59–29a24. A Chapter 60 civil action challenging the practice of reading shipping inventories would provide constitutionally sufficient procedural due process. Petitioners would be afforded the opportunity to be heard by the district court regarding the propriety of the practice and would have sufficient remedies to rectify any deprivation of their protected statutory rights. In this § 1983 action, Plaintiffs have sought declaratory and injunctive relief. Those remedies would be available in a Chapter 60 civil action. See K.S.A. 60–901 et seq. (injunction); K.S.A. 60–1701 et seq. (declaratory judgment). Plaintiffs would have the same discovery rights and tools in both actions.
A panel of this court recently held that K.S.A.2014 Supp. 59–29a24 affords constitutionally sufficient procedural due process for violations of K.S.A.2014 Supp. 59–29a22(b)(16) guaranteeing detainees reasonable access to telephone service to make incoming and outgoing calls. Clark v. Sullivan, No. 110,394, 2014 WL 4627587, at *5–6 (Kan.App.2014) (unpublished opinion). The panel, therefore, affirmed the denial of a habeas corpus petition a number of sexually violent predators brought under K.S.A. 60–1501 alleging a Fourteenth Amendment due process violation. We find the reasoning of Clark persuasive here. Because Plaintiffs have adequate means to redress any purported breach of their privacy rights established in K.S.A.2014 Supp. 59–29a22(b)(15) through a Chapter 60 civil action, they have not been deprived of Fourteenth Amendment due process protections. In turn, no cause of action lies under § 1983 on that ground.
We don't take Plaintiffs to be relying on a substantive due process claim, and the facts clearly do not support one. Substantive due process protects a narrow range of fundamental liberty interests that are not otherwise enumerated in the United States Constitution. See Taylor v. Kansas Dept. of Health & Environment, 49 Kan.App.2d 233, 244, 305 P.3d 729 (2013), rev. denied 299 Kan. (2014). Such an interest must be “deeply rooted” in the national history, Washington v. Glucksberg, 521 U.S. 702, 720–21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and has been described as part of “the very essence of a scheme of ordered liberty,” thus inseparably entwined with “ ‘a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ “ Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Among recognized substantive due process liberty interests are the right to bear and raise children, the right to marry, and the right to be free from government restraint and punishment absent a fair hearing. Substantive due process rights tend to be closely allied with those protections against government overreaching explicitly guaranteed in the Bill of Rights. See County of Sacramento v. Lewis, 523 U.S. 833, 843–44, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ; Glucksberg, 521 U.S. at 720 ; Ingraham v. Wright, 430 U.S. 651, 673–74, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). In addition, especially egregious or arbitrary actions of government officials may violate substantive due process protections of the Fourteenth Amendment if they further no legitimate governmental interest or their character “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. at 845–47 ; Katz v. Kansas Dept. of Revenue, 45 Kan.App.2d 877, 896, 256 P.3d 876 (2011). Whatever else may be said about program staff reading shipping inventories in packages sent to Plaintiffs and other detainees, the practice doesn't offend a fundamental right or entail egregious action.
Plaintiffs have also alleged the practice violates the First Amendment but have not explained the basis for their theory. We could uphold the district court's ruling for that reason. See State v. Martin, 285 Kan. 994, Syl. ¶ 2, 179 P.3d 457, cert. denied 555 U.S. 880 (2008). But we look deeper. Having staff read shipping inventories from outside vendors seems neither to inhibit Plaintiffs' right to speak nor to compel their speech when they would otherwise remain silent. The practice does not offend free speech or allied free press protections in the First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 269–70, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (First Amendment secures freedom of expression “upon public questions”); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) ( “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”). The policy does not diminish Plaintiffs' ability to petition government entities for redress, as the very filing of this action demonstrates. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) (“[A]ccess to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.”). And by no legal prestidigitation could the policy foster some religious doctrine or limit the exercise of another. Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (The Free Exercise Clause substantially limits government action that discriminates based on religious tenets or “regulates or prohibits conduct because it is undertaken for religious reasons.”). So the explicit protections of the First Amendment are not imperiled by the practice of reading shipping inventories.
Looking deeper still, we mention that the United States Supreme Court has recognized a limited—and implicit—right to confidentiality or privacy to the extent it might be essential to effectuating at least some of the enumerated First Amendment rights, notably speech and petition for redress. N.A.A.C.P. v. Alabama, 357 U.S. 449, 460–62, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). In N.A.A.C.P., the Court held the Alabama attorney general could not compel disclosure of the names and addresses of all members of the state affiliates of the civil rights organization as part of an investigation into whether the organization had to register as a foreign corporation. 357 U.S. at 466. The disclosure would further no substantial purpose related to the inquiry but likely would inhibit rank-and-file members in associating with each other through the organization to advocate “both public and private points of view [,]” and the “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of ... [the] freedom of speech.” 357 U.S. at 460. In turn, the Court found that the “[i]nviolability of privacy in group association” to be “indispensible to preservation of freedom of association” especially in the circumstances there presented. 357 U.S. at 462 ; see also Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (noting implicit protection of privacy when necessary to prevent impermissible restraint of First Amendment freedoms). We needn't map the outer reaches of the limited privacy right recognized in N.A.A.C.P.
Plaintiffs have premised their § 1983 claim on their statutory right to privacy in sending and receiving mail. Whatever the dimensions of their privacy interest, the facts here have absolutely nothing to do with the exercise of First Amendment freedoms. The privacy of commercial shipping inventories sent to Plaintiffs bears not a whit on associational rights, freedom of speech, or petitioning government entities for redress. Plaintiffs, therefore, have outlined no cognizable First Amendment violation.
Plaintiffs have failed as a matter of law to show that the program staffs practice of reading shipping inventories accompanying incoming commercial purchases of the program detainees violates either the Due Process Clause or the First Amendment. Absent a violation of a federally protected right, Plaintiffs cannot maintain a § 1983 action. The district court, therefore, properly entered judgment against them and in favor of Defendants.
Affirmed.