Opinion
NO. 2015-CA-000498-MR
01-15-2016
TIMOTHY MILLS APPELLANT v. DON BOTTOM, WARDEN; AND KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES
BRIEF FOR APPELLANT: Timothy Mills, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Edward A. Baylous II Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO SCORSONE, JUDGE
ACTION NO. 12-CI-02144 OPINION
AFFIRMING BEFORE: KRAMER, D. LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: Timothy Mills, Appellant, brings this pro se appeal of an order of the Fayette Circuit Court denying his petition for a declaration of rights, in which he argued that the Kentucky Department of Corrections violated his due process rights during his prison disciplinary proceeding. After a careful review of the record and the applicable law, we affirm.
Relevant Facts
On July 27, 2011, Correctional Officer Thomas Ottis was conducting an institutional count at the Blackburn Correction Complex with the lights shut off. He stated in a disciplinary report that as he was finishing his count, Mills, an inmate, stood up and struck him in the chest with his forearm with enough force to knock him backwards.
Mills' version of events differed. Mills stated at his disciplinary hearing that he was approached by Officer Ottis as Mills was praying, and that Mills only raised his arm in order to prevent Officer Ottis from further walking on his prayer rug. Mills was charged with "committing a physical action against an employee or non-inmate" pursuant to CPP 15.2(II)(C)(VII)(1).
Kentucky Correctional Policies and Procedures.
On July 28, 2011, a hearing was held over the matter. Adjustment Officer Steven J. Abshear ("AO") found that Mills had waived his right to call witnesses due to his failure to specify the witnesses 24 hours in advance. The AO found Mills guilty, citing Officer Ottis's report. As a result, Mills lost 730 days of nonrestorable statutory good time credit and was placed in disciplinary segregation for 180 days.
Mills appealed this decision to Warden Don Bottom on August 8, 2011. On August 16, 2011, Warden Bottom denied his appeal. Mills then filed a Petition for Declaration of Rights in Fayette Circuit Court on May 14, 2012. On November 12, 2014, the circuit court granted summary judgment, citing the finding below that Mills had waived his 24-hour notice period. This appeal follows.
Analysis
Mills makes six arguments on appeal: 1) the circuit court erred when it found that no genuine issue of material fact precluded summary judgment; 2) he was denied due process when he was not provided a legal aid prior to 24 hours before his hearing; 3) he was denied due process when the AO ruled that Mills waived the right to call witnesses; 4) he was denied due process when the AO failed to provide adequate findings of fact; 5) the evidence against him was not reliable; and 6) the Kentucky Department of Corrections lacked the proper authority to promulgate penal regulations that are inconsistent with KRS 508.025. We affirm.
Appellant argues separately that we are required to construe his pleadings liberally, because he is pro se. A court must "liberally construe pro se pleadings to extract the appellant's intent and bring about a full adjudication of the relevant issues[.]" Taylor v. Commonwealth, 354 S.W.3d 592, 594 (Ky. App. 2011). We have done so.
Kentucky Revised Statutes.
"Procedural and evidentiary standards that satisfy due process are markedly dissimilar in the prison disciplinary context than those mandated in a criminal prosecution." Wilson v. Haney, 430 S.W.3d 254, 257-58 (Ky. App. 2014). The United States Supreme Court has stated that procedural due process in this context requires only: "(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 action." Superintendent, Mass. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985).
These due process requirements are generally met "if some evidence supports the decision by the prison disciplinary board[.]" Id., 472 U.S. at 455, 105 S.Ct. at 2774. Furthermore, "determining whether 'some evidence' is present in the record does not 'require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence[]'" and "[e]ven 'meager' evidence will suffice." Ramirez v. Nietzel, 424 S.W.3d 911, 916-17 (Ky. 2014) (citations and footnotes omitted).
I. Genuine Issue of Material Fact
Mills' first argument is that the circuit court improperly determined that there was no genuine issue of material fact under the summary judgment standard. Summary judgment is appropriate when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. Mills does not specifically state this alleged issue of material fact, but does argue that he was treated differently from other inmates. He also argues that the provision under which he was sentenced was unjust, and that the penalty he received was disproportionate given that he did not intend to harm Officer Ottis.
Kentucky Rules of Civil Procedure.
This Court has previously ruled that the standard for summary judgment is altered in the context of a prison disciplinary action. Smith v. O'Dea, 939 S.W.2d 353, 356 (Ky. App. 1997) ("Where, as here, principles of administrative law and appellate procedure bear upon the court's decision, the usual summary judgment analysis must be qualified."). Summary judgment should be granted "if and only if the inmate's petition and any supporting materials, construed in light of the entire agency record ... does 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." Id.
Mills' argument that he was treated differently from other inmates has no support from the record, and is therefore mere speculation. "'[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and ... the question should be taken from the jury when the evidence is so unsatisfactory as to resort to surmise and speculation.'" Sparks v. Trustguard Ins. Co., 389 S.W.3d 121, 124 (Ky. App. 2012) (quoting O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006)). Mills' argument that he did not intend to harm Officer Ottis is also not an issue of fact. "The courts only review the decisions of the Adjustment Committee [or Adjustment Officer] and prison officials are afforded broad discretion." Yates v. Fletcher, 120 S.W.3d 728, 731 (Ky. App. 2003) (emphasis in original). As such, we "must affirm if there is 'some evidence' supporting the charge." Id. (citation omitted). Regardless of whether we believe Mills' version of events, we are still required to affirm if the decision below was supported by "some evidence." Because we do not see any genuine issue of material fact, and Mills has failed to allege any, this issue is without merit.
II. Alleged Denial of a Legal Aid 24 Hours before the Hearing
Mills next argues that he was denied access to a legal aid more than 24 hours prior to his disciplinary hearing. The record is clear that, regardless of whether Mills was provided a legal aid less than 24 hours prior to his proceeding, Mills actually was provided the assistance of a legal aid.
The disciplinary report also states that Appellant waived his right to 24-hour notice of the hearing. We have previously held that "[j]ust as the prisoner has a right to the 24-hour notice, he also has the right to waive this right." Yates, 120 S.W.3d at 730. --------
CPP 15.6(II)(D)(2)(b) provides, in relevant part, that at the hearing the inmate shall be entitled to "[a]ssistance by a chosen assigned legal aid or appointed staff counsel who has been given an opportunity to confer with the inmate at least twenty-four (24) hours in advance of the hearing[.]"
Our Supreme Court has recently held that:
Prison regulations, even those which include mandatory language such as "shall," do not automatically confer on the prisoner an added procedural due process protection. This Court refuses to render a prison official's failure to comply with the DOC's own regulations as a per se denial of procedural due process. To do so would be to expand the protections outlined in Wolff to include the extensive procedural requirements set forth in the CPP and other countless prison regulations and policies, a deviation from which would render that divergence a violation of a prisoner's due process rights.White v. Boards-Bey, 426 S.W.3d 569, 575 (Ky. 2014).
Furthermore, the United States Sixth Circuit Court of Appeals has stated "[t]here is no constitutional violation when state actors fail to meet their own regulations, so long as the minimum constitutional requirements have been met." Black v. Parke, 4 F.3d 442, 448 (6th Cir. 1993) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985)). As Mills was actually provided the assistance of a legal aid at his hearing, the failure to comply with the CPP, if any such failure indeed occurred, did not in and of itself result in a violation of Mills' due process rights.
III. Inability to Call Witnesses
Next, Mills contends that he was denied due process when he was not permitted to call witnesses at his hearing. "In the prison setting, the right to call witnesses is limited based on the legitimate needs and concerns of the prison." Ramirez, 424 S.W.3d at 917. However, an "AO [is required] to offer up an explanation [as to his refusal to allow an inmate to call witnesses] at some point in the proceedings[,]" id. at 919, and "[t]he sole requirement is that the decision to refuse witnesses or evidence must be 'logically related to preventing undue hazards to institutional safety or correctional goals.'" Id. at 918 (quoting Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985)).
At Mills' hearing, he stated that he did not identify any witnesses to the Court previously because he did not know any of their names. CPP 15.6(II)(C)(5)(a)(2), however, provides that "[i]f the inmate has not done so during the course of the investigation, the inmate shall[ ... i]dentify to the Adjustment Committee or Adjustment Officer what witnesses he has selected not less than twenty[-]four (24) hours prior to the initial hearing." CPP 15.6(II)(C)(5)(b) continues that the "[f]ailure to identify an assigned legal aide, staff counsel or witnesses in accordance with this procedure shall constitute a waiver." As the circuit court noted, the agency record states that Mills waived his right to call witnesses. The AO only limited Mills' ability to call witnesses after Mills admitted that he had not specified the witnesses he had selected prior to his hearing. Because Mills was actually informed of the reason why he was not permitted to call witnesses, and because the decision was logically related to the correctional goal of complying with its internal regulations, no violation of Ramirez occurred.
IV. Findings of Fact
Next, Mills contends that the findings of fact in the disciplinary report were insufficient. CPP 15.6(II)(D)(3)(d) states that "[t]he decision shall have specific findings of fact. The findings may be based on facts contained in the employee's report. The findings shall explicitly state which facts were determined to be true if facts in the employee's report are relied upon."
Appellees contend that this issue is not preserved for our review because Mills failed to raise this issue in his administrative appeal to the warden. "The failure to raise an issue before an administrative body precludes a litigant from asserting that issue in an action for judicial review of the agency's action." O'Dea v. Clark, 883 S.W.2d 888, 892 (Ky. App. 1994). Our review of the record confirms that Mills raised this issue during the administrative review of the warden's response to Mills' appeal. An administrative review of the warden's appeal is provided for in CPP 15.6(F)(8), which states:
The Warden has the authority at any time to order the disciplinary report to be vacated upon justification and may allow it to be re-investigated or re-heard, or both. This is at the Warden's level only and shall not create any new time for additional appeals. The Warden may also dismiss the report.As this procedure is a part of the administrative review process, raising an issue for the first time during this procedure is sufficient under O'Dea to preserve it for our review.
Regardless, it is clear that the findings of fact in this case were adequate. Mills' disciplinary findings included this statement:
Based on the body of the report of officer Ottis and his statements during the investigation that the report was true and accurate and that inmate Mills did in fact stri[ke] him to the chest hard enough to force him back and the officer states the stri[ke] to the chest was painful, I do find you guilty.A hearing was held, and Mills testified before the fact-finder. The Adjustment Officer stated that he believed the reporting officer's report over Mills' testimony. This is all that is required:
The Adjustment Committee's findings ... were "[t]he Committee Believes The Officer's Report To Be Correct...." This incorporates the facts by reference and
becomes the written findings of the Adjustment Committee. This procedure (not rewriting the findings) satisfies the requirements of Wolff that there be written findings as to the evidence relied on and the reasons for the disciplinary action.Yates, 120 S.W.3d at 731. See also White, 426 S.W.3d at 577 ("The ACO's ruling was based on Officer Thornberry's report, the contents of which stated that Lieutenant Phillips had personally witnessed Boards-Bey commit the alleged infraction. Thus, there was some evidence in the limited record to pass constitutional muster.").
Because the Adjustment Officer's decision incorporated the report's findings of fact, we find no due process violation.
V. Reliability of the Evidence
Next, Mills contends that his "institutional conviction and punishment was imposed wherein the 'some evidence' utilization was not reliable and wherein the facts did not 'justify the sanctions' imposed or otherwise inflicted upon him." It is the finder of fact that is "vested with the responsibility of weighing and evaluating the credibility of witnesses and the reliability of evidence." Buda v. Schuler, 352 S.W.3d 350, 355 (Ky. App. 2011). As we are an appellate court, it is not within our purview to judge the credibility of the evidence in Mills' case.
Similarly, Mills claims that he was denied due process because the medical department did not provide any documentation of the incident in question. No such documentation is necessary, as long as "some evidence supports the decision by the prison disciplinary board." Walpole, 472 U.S. at 455, 105 S.Ct. at 2774. Because the Adjustment Officer incorporated by reference the report of Officer Ottis, we find that "some evidence" existed in the present case.
VI. Ability of the Department of Corrections to Promulgate Regulations
Finally, Mills asserts that the Kentucky Department of Corrections was without the authority to promulgate CPP 15.2(II)(C)(VII)(I), the regulation concerning the physical action against an employee or non-inmate, because it is inconsistent with KRS 508.025, the statute for assault in the third degree.
CPP 15.2(I) states, in relevant part, that "'[p]hysical action' means any act of fighting, hitting, kicking, shoving, pushing, biting, using force or other similar types of physical contact, throwing, squirting or spitting any item, substance or fluid." KRS 508.025(1)(b) provides:
A person is guilty of assault in the third degree when ... [b]eing a person confined in a detention facility, or state residential treatment facility or state staff secure facility for residential treatment which provides for the care, treatment, or detention of a juvenile charged with or adjudicated delinquent because of a public offense or as a youthful offender, inflicts physical injury upon or throws or causes feces, or urine, or other bodily fluid to be thrown upon an employee of the facility.
According to Mills, these regulations are inconsistent because assault in the third degree requires intent and CPP 15.2(I) does not. We have previously discussed the Kentucky Legislature's delegation of authority to the Department of Corrections:
The Kentucky Legislature delegated to the Department the discretionary authority to award "good-time" credit to reduce a prisoner's sentence. Pursuant to Kentucky Revised Statutes (KRS) 197.045(1), a prisoner "may receive a credit on his sentence ... to be determined by the department from the conduct of the prisoner." KRS 197.045(1)(emphasis supplied). Conversely, "[t]he department may forfeit any good time previously earned by the prisoner or deny the prisoner the right to earn good time in any amount if during the term of imprisonment, a prisoner commits any offense or violates the rules of the institution." Id.(emphasis supplied); see also KRS 197.047(9)(to similar effect for good-time credit earned by prisoner from work on governmental services program-related project).
The Legislature also authorized the promulgation of "administrative regulations for the government and discipline of the penitentiary ... and for the government of the prisoners in their deportment and conduct[.]" KRS 197.020(1)(a). Presumably recognizing that prisoner discipline is best conducted at the individual prisons, the Legislature also granted the Secretary of the Justice and Public Safety Cabinet, which oversees the Department, authority to "delegate to any person appointed the power and authority as he or she deems reasonable and proper for the effective administration of the cabinet." KRS 196.035.
The bulk of the power and authority in the area of prisoner discipline has been properly delegated to the wardens of the various penal institutions of Kentucky. Among the many Kentucky Corrections Policies and Procedures (KCPP) developed and adopted as law to govern prison administration is KCPP 15.6, entitled "Adjustment Procedures and Programs," made law by its incorporation by reference in 501 Kentucky Administrative Regulations (KAR) 6:020.3 This policy describes the breadth of and limitations upon the authority granted to the wardens in adjusting, or forfeiting, the good time credit earned by a prisoner when he is accused of violating a prison rule.
To summarize, the Legislature authorized the Secretary of the Justice and Public Safety Cabinet, in overseeing the Department of Corrections, to regulate, to reward, and to punish prisoner conduct. The Secretary, without ceding or relinquishing that authority, properly delegated much of it to the wardens who, under properly adopted policies, have final say in the forfeiture of good-time credit. The roles of the prison employee who reports the incident, the supervisor who reviews the report, the supervisor who investigates the report, and the adjustment officer who completes the report, are merely preliminary to the warden's exercise of final authority delegated to him by the Secretary.Watkins v. Fannin, 278 S.W.3d 637, 640-42 (Ky. App. 2009).
It is clear that the Department of Corrections was correctly delegated authority by the Kentucky Legislature. We cannot, therefore, hold that CPP 15.2(I) and KRS 508.025 are inconsistent. It is sensible that an inmate might be punished for certain things for which an unincarcerated person would not. If it were required that the Department of Corrections could only charge inmates with disciplinary measures which constituted crimes for the unincarcerated, prisons could not, for example, discipline inmates for the possession of certain kinds of dangerous contraband. Such a determination would compromise a prison's ability to maintain control over its inmates. Gilhaus v. Wilson, 734 S.W.2d 808, 809 (Ky. App. 1987). Because it is permissible to punish inmates for different conduct than non-inmates, this argument is unpersuasive.
Conclusion
In sum, we hold that 1) no genuine issue of material fact existed which would preclude summary judgment in the prison disciplinary context, because "some evidence" existed in the record to confirm the AO's findings; 2) any error in failing to provide an inmate a legal aid 24 hours prior to his hearing did not amount to a due process violation, when the inmate actually was provided a legal aid prior to his hearing; 3) there was no violation of Ramirez, where the inmate was told he was denied the ability to call witnesses because he failed to specify those witnesses 24 hours in advance; 4) the AO provided sufficient findings of fact in the inmate's prison disciplinary proceeding, where he incorporated the findings in the report of the investigating officer; 5) an appellate court may not review the reliability of the evidence; and 6) the Kentucky Department of Corrections had the proper authority to promulgate penal regulations that are inconsistent with crimes for unincarcerated persons.
As it appears from the record that "some evidence" supported the AO's finding, the Fayette Circuit Court's order dismissing Mills' prison disciplinary action is therefore affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Timothy Mills, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Edward A. Baylous II
Justice and Public Safety Cabinet
Frankfort, Kentucky