Opinion
No. 108,114.
2013-02-15
Adrian M. REQUENA, Appellant, v. Sam CLINE, Appellee.
Appeal from Reno District Court; Joseph McCarville, Judge. Adrian M. Requena, appellant pro se. Jon D. Graves, of Kansas Department of Corrections, for appellee.
Appeal from Reno District Court; Joseph McCarville, Judge.
Adrian M. Requena, appellant pro se. Jon D. Graves, of Kansas Department of Corrections, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Adrian M. Requena was convicted of possession of dangerous contraband in violation of K.A.R. 44–12–901 after a prison disciplinary hearing at the Hutchinson Correctional Facility. Requena was sentenced to 14 days' segregation and 30 days of restriction, but the sanctions were suspended for 120 days. After exhausting his administrative remedies, Requena filed a habeas petition under K.S.A. 60–1501 in Reno County District Court. After the trial court summarily dismissed Requena's 60–1501 petition, he appealed to this court. Requena contends that he was denied due process during the disciplinary process. But the right to due process—and court review—applies only when an inmate has been deprived of a constitutionally protected interest. In this case, because the sanction that Requena complains of was not imposed, no due process rights were implicated. Accordingly, we affirm the trial court's dismissal of Requena's 60–1501 petition.
Requena, an inmate at the Hutchinson Correctional Facility, had a disciplinary report filed against him. According to the report, CO II Blackmon found a red liquid in a trash can inside of Requena's locker that tested positive for alcohol. The report charged Requena with possession of dangerous contraband under K.A.R. 44–12–901, a class I prison offense.
At the hearing for Requena's disciplinary violation, Requena did not deny that homemade alcohol was found inside his locker. Instead, Requena maintained that the alcohol had been placed in his locker by another inmate—Martin Behling. To support his argument, Requena attached an affidavit from Behling. Behling's affidavit stated the following:
“[W]hile inmate Requena # 48877 was using the restroom I put some [homemade alcoholic beverage] in his locker because earlier the porters came around and told me that the officers were planning on shaking down our cell. He wasn't out of the restroom no more than a few seconds when Blackmon came to our cell to shake it down. I knew I was going to get away with it because Requena never opened his locker and didn't find out until he received his shakedown sheet.”
Although Behling admitted in his affidavit that he had placed the alcohol in Requena's locker, Behling did not admit that the alcohol belonged to him. The hearing officer found Requena guilty of possession of dangerous contraband by a preponderance of the evidence. The hearing officer discredited Behling's admission because he had been released before the disciplinary hearing. The summary of the disciplinary hearing states:
“Inmate Behling was released prior to this hearing on the date of the hearing. This makes it so that inmate Behling could not be questioned to [the] validity of his statement and it appears that inmate Behling was attempting to take the blame because there were no consequences for his actions.”
The hearing officer then concluded that because the alcohol was found in Requena's locker, it was more likely than not that he was guilty of violating K.A.R. 44–12–901. Requena was sentenced to 14 days' segregation and 30 days of restriction, but both were suspended for 120 days.
Requena appealed the hearing officer's decision, arguing that the hearing officer failed to conduct a proper investigation because he failed to review the videotape of the incident. The Secretary of Corrections upheld the decision, finding that the decision was based on “some evidence” and that there was “[s]ubstantial compliance with Departmental and Facility Standards and Procedures.”
Next, Requena filed a 60–1501 habeas petition. Requena's 60–1501 petition argued that the hearing officer “was not being impartial and did not follow disciplinary procedures.” Requena argued that the hearing officer failed to follow disciplinary procedures because he did not review a videotape of the incident. The trial court summarily dismissed Requena's petition, concluding that there was some evidence to support the conviction and that the videotape evidence failed because the record shows that Requena made no request for the videotape during the hearing. The trial court also found that Requena had failed to show a liberty interest to challenge the due process that he received because the 14 days of disciplinary segregation and 30 days of restriction were both suspended for 120 days. Did the trial court err in finding that the sanctions imposed on Requena by the disciplinary hearing officer did not involve a liberty interest protected by due process?
Requena first argues that the trial court erred in summarily dismissing his 60–1501 petition because he had a liberty interest protected by due process. Although Requena does not challenge the trial court's determination that he did not have a liberty interest based on his suspended disciplinary sentence, Requena does argue that he had a liberty interest based on an alleged $2 restitution charge. Requena seems to be referring to the disciplinary report, which requested $2 in restitution for the test used to determine if the liquid found in his locker contained alcohol. Requena argues that “he has a protected liberty interest in monies and even a small amount as here satisfies the first step to determine a deprivation.”
On appeal, Kansas appellate courts review a trial court's summary dismissal of a petitioner's 60–1501 claim independently, without any required deference to the trial court. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). In determining whether a 60–1501 petition states a claim for relief, the trial court examines the allegations in the petition and the contents of any attachments to determine if the petition alleges “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). When reviewing a trial court's summary dismissal for failure to state a claim, an appellate court is required to accept as true the allegations in the petition to determine if the facts alleged and the reasonable inferences that can be drawn from them state a claim for relief. 285 Kan. at 679; see Hill v. Simmons, 33 Kan.App.2d 318, 320, 101 P.3d 1286 (2004) (court must determine if a claim is stated on any possible theory, not just theory asserted by petitioner).
Under Kansas law, courts apply a two-step analysis for due-process violations: “The first inquiry is whether the State has deprived [petitioner] of life, liberty, or property. If there has been a deprivation through State action, we must next determine the extent and nature of the process which is due.” Hogue v. Bruce, 279 Kan. 848, 850–51, 113 P.3d 234 (2005). Here, Requena maintains that the $2 restitution that was requested in his disciplinary report establishes his liberty or property interest. But Requena's argument fails because there is no indication that the $2 restitution was ever imposed. Indeed, our court has held that sanctions that were never actually imposed do not implicate a liberty or property interest. See Hardaway v. Lamed Correctional Facility, 44 Kan.App.2d 504, 505–06, 238 P.3d 328 (2010) ( “Punishments never imposed do not implicate a protected ... interest.”); Ramirez v. State, 23 Kan.App.2d 445, Syl. ¶ 1, 931 P.2d 1265 (inmate's disciplinary action does not implicate due process absent contention that punishment imposed represents a significant and atypical hardship), rev. denied 262 Kan. 962 (1997). Although the disciplinary report requested $2 in restitution, this restitution was not imposed as part of Requena's sentence. Instead, Requena merely was sentenced to a suspended sentence of 14 days' segregation and 30 days of restriction. Thus, Requena has failed to show that he was deprived of a liberty or property interest. The same reasoning would apply had Requena challenged his suspended sentence of 14 days' segregation and 30 days of restriction. Because this sentenced was not imposed, Requena cannot show that he was deprived of a liberty or property interest. Was Requena's due process right to an impartial hearing violated based oh the hearing officer's failure to consider as evidence a videotape of the incident?
Requena next argues that his due process right to an impartial hearing was violated because the hearing officer failed to consider as evidence a videotape of the incident. In particular, Requena contends that “when the hearing officer would not allow the video, that he requested before the hearing, that he was actually denying Requena's witness.” As mentioned earlier, Kansas appellate courts review a trial court's summary dismissal of a petitioner's 1501 claim independently, without any required deference to the trial court. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). Requena has the burden of proving a violation of his constitutional rights. See Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505 (1999); Starr v. Bruce, 35 Kan.App.2d 11, 12, 129 P.3d 583 (2005), rev. denied 280 Kan. 984 (2006).
Requena's argument that his constitutional rights were violated because of the hearing officer's failure to consider a videotape as evidence has no merit. First, there is no indication in the record of the disciplinary proceedings, attached to Requena's petition that he requested that the hearing officer to review videotape evidence of the incident. Although Requena raised the videotape argument in his 1501 petition and during the administrative appellate process, there is no indication that he requested the videotape as evidence before his disciplinary hearing. Requena provides no documentation to show that he ever requested that the hearing officer review a videotape, and there is no reference to such a request in the notes memorializing the disciplinary hearing. In fact, there is no evidence that the surveillance of his cell was preserved on videotape or that any such videotape existed when Requena had his disciplinary hearing.
Moreover, a prisoner facing a disciplinary proceeding is not afforded the full panoply of rights due a defendant in a criminal proceeding. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In fact, this court has held that due process does not require “that prison security videos be made available to inmates who are the subjects of prison disciplinary proceedings.” Swafford v. McKune, 46 Kan.App.2d 325, 331, 263 P.3d 791 (2011), rev. denied 294 Kan. –––– (2012). Thus, even if the hearing officer had denied Requena's request, his argument would fail because due process did not require that the videotape be made available to him.
Affirmed.