Opinion
NO. 2015-CA-000588-MR
06-10-2016
JACK ROSE APPELLANT v. STEVE HANEY, WARDEN, AND SERGEANT DUNCAN J. KENDALL (BLACKBURN CORRECTIONAL COMPLEX) APPELLEES
BRIEF FOR APPELLANT: Jack Rose, Pro Se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jane Lyle Ghaelian Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 15-CI-00061 OPINION
AFFIRMING
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BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND JONES, JUDGES. CLAYTON, JUDGE: Jack Rose, pro se, appeals the March 20, 2015 Fayette Circuit Court's grant of summary judgment, which dismissed his petition for declaration of rights. After careful consideration, we affirm.
While serving a felony sentence at Blackburn Correctional Complex, Jack Rose was charged with two institutional infractions related to contraband. He was issued two disciplinary write-ups for conspiring to bring tobacco products into the institution. On October 2, 2014, after Rose appeared before a prison disciplinary committee, Sergeant Duncan J. Kendall found him guilty of possession or promoting of "dangerous contraband" and smuggling of contraband items into/out-of/within the Institution. Rose received 90 days disciplinary segregation and forfeited 180 days good time for the offense for possession and promoting of dangerous contraband. Rose also was issued discretionary punishment of 60 days good time loss for the offense of smuggling contraband items.
On January 13, 2015, Rose filed a petition for declaration of rights with the Fayette Circuit Court seeking to overturn the decision. The Department of Corrections filed a motion to dismiss based on Rose's failure to attach the requisite proof of exhaustion of all administrative remedies. Rose filed a timely response to the motion and attached the disciplinary report forms for both offenses and proof of the appeal to the Warden, Steve Haney.
Next, on February 25, 2015, the appellees filed a motion for summary judgment. Rose filed a response to the summary judgment motion arguing that the Warden, et al., violated his due process rights against double jeopardy by charging him with both possession and smuggling of "dangerous contraband"; that Sergeant Kendall failed to independently determine the reliability of the prison informant; and lastly, that the Department of Corrections does not have the authority to define tobacco as "dangerous contraband." After addressing each of these arguments, the trial court granted the summary judgment and dismissed Rose's petition. He now appeals this decision.
On appeal, Rose contends that the trial court incorrectly determined that no genuine issue of material fact existed and that the Appellees were entitled to summary judgment. In particular, he maintains that double jeopardy occurred when he was found guilty of the offenses of possession and smuggling of dangerous contraband; insufficient evidence was provided to support the allegations of possession and smuggling of dangerous contraband; and, that the Department of Corrections does not have authority to define tobacco as "dangerous contraband".
On appeal, Kentucky courts review summary judgment by ascertaining whether there are genuine issues of material fact, and, if not, whether the movant is entitled to judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56.02 and Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). But prison disciplinary proceedings are administrative, rather than criminal, in nature. In this case, Rose's petition arises in the context of a petition for declaratory judgment under Kentucky Revised Statutes (KRS) 418.040. In these circumstances, summary judgment for the Department of Corrections is proper if the prisoner's petition and supporting materials, construed in light of the entire agency record, do 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. Smith v. O'Dea, 939 S.W.2d 353, 355-56 (Ky. App. 1997).
With this standard in mind, we address the issue of double jeopardy. It is important to observe that 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); O'Dea, 939 S.W.2d at 357-58.
Here, the trial court explained that although Wolff indicates that prisoners have a liberty interest in good time credit, and therefore, are entitled to certain procedural protections, which include minimal due process, prison disciplinary hearings are not criminal prosecutions, and thus, the full panoply of rights for the defendant do not apply. Id. at 556. Regarding double jeopardy, the Kentucky Supreme Court held that the protection against double jeopardy applies strictly to criminal prosecutions, not to disciplinary action taken by an administrative body. Louisville Civil Service Board. v. Blair, 711 S.W.2d 181, 183 (Ky. 1986).
We concur with this reasoning. Kentucky courts have followed the federal courts and determined that constitutional protection against double jeopardy does not apply to prison disciplinary hearings. See Meeks v. McBride, 81 F.3d 717, 722 (7th Cir.1996). Rose does not have a due process right against double jeopardy as a matter of law, and thus, the trial court did not err in granting summary judgment and dismissing the case based on this argument.
Next, we address Rose's argument that insufficient evidence was provided to support the allegations of possession and smuggling of "dangerous contraband." Rose supports this contention by stating that the only evidence provided to find him guilty was the evidence in a confidential information packet from an unnamed source. He suggests that Sergeant Kendall, the adjustment officer, never made an independent determination that the evidence was credible and/or reliable.
The trial court explained that under O'Dea, for a court to uphold the decision of a prison disciplinary board, the decision must be supported by "some evidence." O'Dea, 939 S.W.2d at 355. Further, the trial court points out that the evidence must at least be reliable. Byerly v. Ashley, 825 S.W.2d 286, 288 (Ky. App. 1991). Relying on the reasoning in Foley v. Haney, 345 S.W.3d 861, 864 (Ky. App. 2011) where our Court applied the reliability component to information obtained from a confidential informant, the trial court noted that a hearing officer must find information from a confidential informant reliable before using it at a hearing and include the basis for this finding in its report.
In its order, the trial court pointed out that Sergeant Kendall found that the information from the confidential informant was reliable before using it and included the basis for this finding in the disciplinary report form for both offenses. Furthermore, Captain Eric Sizemore, the investigating officer, attached an affidavit to the summary judgment motion wherein he outlines the evidence that corroborated the informant's statements, which also confirms the reliability of the evidence.
Accordingly, the trial court held that the evidence on the record provided that Sergeant Kendall possessed sufficient evidence that the informant's testimony was reliable, and thus, the Appellees were entitled to summary judgment. We agree with the trial court, and thus, it correctly held that the confidential information was sufficiently reliable and that the adjustment officer's findings adequately expressed that the information was reliable.
Lastly, Rose claims that the Department of Corrections does not have the authority to define tobacco as "dangerous contraband." Before the trial court, Rose cited Cooper v. Commonwealth, 648 S.W.2d 530 (Ky. App. 1982) to support his position. Cooper held that the legislature determines the definition for "dangerous contraband" under KRS 520.050. The trial court, however, distinguished Cooper by saying it was inapplicable to Rose's case since he was not charged in a criminal proceeding for a violation of KRS 520.050. The trial court noted that KRS 197.020 provides that it is the duty of the Department of Correction to "promulgate administrative regulations for the government and discipline of the penitentiary . . . and for the government of the prisoners in their deportment and conduct." Consequently, the trial court held that the Department of Corrections has the authority to include tobacco in its list of "dangerous contraband."
On appeal, Rose refines his argument and proffers that the Department of Corrections has already defined "dangerous contraband," and its definition did not include tobacco. Continuing with this reasoning, he states because Kentucky Corrections Policy and Procedure (CPP) 15.2(I) did not name "tobacco" as "dangerous contraband," the Department cannot now modify its own regulations to include "tobacco." Further, Rose points out that although under CPP 9.6(II)(A) tobacco is "dangerous contraband", he was not charged with a violation of CPP 9.6(II)(A) but of CPP 15.2(I).
Nonetheless, the Department of Corrections is given the authority in KRS Chapter 520 and KRS 197.020(1)(a) to define "dangerous contraband." KRS 197.020(1)(a) provides that "(1) The Department of Corrections shall: (a) Promulgate administrative regulations for the government and discipline of the penitentiary, for the government and official conduct of all officials connected with the penitentiary, and for the government of the prisoners in their deportment and conduct."
Moreover, Appellees highlight that CPP 15.2 states "'dangerous contraband' is defined by KRS 520.010(3)." The statutory scheme is as follows: KRS 520.050 prohibits the knowing possession of "dangerous contraband" within a detention facility. KRS 520.010(1) defines contraband as, "any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, departmental regulation, or posted institutional rule or order." And KRS 520.010(3) defines "dangerous contraband" as:
"Dangerous contraband" means contraband which is capable of use to endanger the safety or security of a detention facility or persons therein, including, but not limited to, dangerous instruments as defined in KRS 500.080, any controlled substances, any quantity of an alcoholic beverage, and any quantity of marijuana, cell phones, and saws, files, and similar metal cutting instruments.KRS 520.010(3) (emphasis added). Although tobacco is not specifically mentioned in the statute, it is certainly encompassed by the language of the definition. Given the above-emphasized language in the statute, it is obvious that the list of items considered to be "dangerous contraband" is not exhaustive.
And, as noted by Rose, even though he was not charged with a violation of CPP 9.6(II)(A), the policy manual itself includes tobacco as "dangerous contraband" when describing this policy. Its presence in the policy demonstrates the Department of Corrections has determined that tobacco products are "capable of use to endanger the safety or security of a detention facility or persons therein" as described in KRS 520.010. Consistency warrants that tobacco would be a "dangerous contraband" in additional policies.
It is the role of the Department of Corrections to ascertain items that are "dangerous contraband." We have no difficulty comprehending a scenario where the illegal possession and smuggling of tobacco into a prison creates danger in an institution. Thus, we conclude that the Department of Corrections is permitted to consider tobacco as "dangerous contraband" under our statutory, administrative, and case law.
We affirm the decision of the Fayette Circuit Court granting summary judgment and dismissing this case.
ALL CONCUR. BRIEF FOR APPELLANT: Jack Rose, Pro Se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jane Lyle Ghaelian
Frankfort, Kentucky