Opinion
No. 107,809.
2012-09-28
Robert L. WATKINS, Appellant, v. Robert SIEDLECKI, Acting Secretary of Social and Rehabilitation Services, et al., Appellees.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge. Robert L. Watkins, appellant pro se. C. William Ossmann, of Department of Social and Rehabilitation Services, of Topeka, for appellees.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.
Robert L. Watkins, appellant pro se. C. William Ossmann, of Department of Social and Rehabilitation Services, of Topeka, for appellees.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Robert L. Watkins is a civilly committed sexually violent predator who is currently detained at Larned State Hospital as part of the Kansas Sexual Predator Treatment Program (SPTP). See K.S.A. 59–29a01 et seq. (Kansas Sexually Violent Predator Act). The record does not contain the terms of Watkins' commitment.
Watkins filed a pro se petition for writ of habeas corpus pursuant to K.S.A. 60–1501 against the Secretary of Social and Rehabilitation Services and others. In his petition, Watkins alleged: (1) he was subjected to an involuntary search of his person during which he was body slammed to the ground by security officers; and (2) he was unlawfully placed in seclusion without a doctor's order and strip searched. Watkins claims that the actions alleged in his petition “are an excessive force action by LSH Security and allowed by Robert Connell and Robert Siedlecki, in violation of the Petitioner's rights under the Fourth and Fourteenth Amendments of the United States Constitution.”
Watkins claimed that the SPTP was placed on “lockdown” and all residents were asked to report to the day hall. After all residents were in the day hall, “what appeared to be Department of Corrections officers,” accompanied by a drug search dog, searched the residents' rooms. Watkins alleges:
“Seven (7) LSH Security Officers approached the Petitioner and proceeded to tell him they were going to search his person, in which the Petitioner asked where their search warrant is and said to them ‘do not touch me.’ LSH Security responded by body slamming the Petitioner to the ground, without warning, and performing a search anyhow.”
Watkins does not claim that his room was searched or that any of his property was seized during the search.
After the search of his person, Watkins claims that he was placed in seclusion without a doctor's order and then videotaped being strip searched. Additionally, Watkins stated that one of the security officers twisted his arm back over his head and that he could still feel pain and harm 5 days after the incident.
In a well-reasoned and well-stated Memorandum Decision and Order, the district court ruled that it plainly appeared from the face of the petition that Watkins was not entitled to relief. The court found that Watkins' petition, construed in the light favoring Watkins, failed to show any issues of constitutional stature or of shocking and intolerable conduct. Accordingly, the district court summarily dismissed his petition pursuant to K.S.A. 60–1503(a), without appointing counsel. The district court ruled:
“The facts presented by Petitioner fail to allege a procedural due process claim. Instead, the allegations of the Petitioner relate to a substantive due process claim and to avoid summary dismissal of the Petition, the allegations must be of shocking and intolerable conduct, or continuing mistreatment of a constitutional stature.
“Petitioner fails to state a claim of shocking and intolerable conduct, even when reviewing his Petition in the light most favorable to him as to whether or not the Petition states any valid claim for relief. There is nothing within the record to establish or support any allegations that the issues complained of by Petitioner are the result of deliberate indifference or shocking conduct by the Respondent. The allegations of the Petitioner on their face do not rise to the level of being egregious or outrageous. Similarly, and by the same evaluation standard, the allegations of the Petition fail to establish continuing mistreatment of a constitutional stature. The Petitioner makes no argument that the issue complained of is recurring, stating only that he has reasonable apprehension of a repeated harm from Larned State Hospital security. The Petitioner acknowledges that the SPTP was on lock down for search [of] the unit, and that a drug search dog was being used. The Respondents have a legitimate governmental interest to investigate the presence of any contraband, which could relate to the safety and treatment of SPTP patients and/or staff. The nature of the search on the date in question had a ‘real and substantial relation to the objective sought.’ [Chiles v. State, 254 Kan. 888, Syl. ¶ 11, 869 P.2d 707,cert. denied513 U.S. 850(1994).]
“Watkins is not entitled to appointment of counsel because his Petition is subject to summary dismissal for failing to set forth a procedural or substantive due process claim that alleges shocking or intolerable conduct or continuing mistreatment of a constitutional stature.”
On appeal, Watkins claims the district court erred by summarily dismissing his petition. He claims his Fourteenth Amendment right to due process was violated because: (1) the allegations show a continuing mistreatment of a constitutional stature based on his “reasonable apprehension of repeated immediate bodily harm by LSH Security, [Connell], Christopher Burke, and [Siedlecki]”; and (2) the allegations that the security officers slammed Watkins to the ground, twisted his arm over his head, placed him in seclusion, and videotaped him being strip searched rise to the level of shocking and intolerable conduct. Watkins also maintains that his right to be free from unlawful searches and seizures under the Fourth Amendment was violated when he was subjected to a search of his person.
K.S.A. 60–1501 authorizes any person confined in Kansas to prosecute a writ of habeas corpus in the county in which such restraint is taking place for a declaration that the restraint is wrongful. An individual confined in the SPTP is included within the purview of K.S.A. 60–1501 and, as a result, may bring a habeas corpus petition alleging due process violations. Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009).
The ordinary rules of civil procedure do not apply to a K.S.A. 60–1501 claim. To avoid summary dismissal of a K.S.A. 60–1501 petition, the petitioner must show facts of “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). K.S.A. 60–1503 authorizes the summary dismissal of a habeas corpus petition if it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief.
We review de novo the district court's summary dismissal of a petitioner's K.S.A. 60–1501 claim. Johnson, 289 Kan. at 649. When reviewing a district court's summary dismissal for failure to state a claim, we are required to accept as true the allegations in the petition in determining whether the facts alleged and the reasonable inferences that can be drawn from them state a claim for relief. Schuyler, 285 Kan. at 679. Once the allegations are accepted as true the question becomes whether Watkins showed (1) shocking and intolerable conduct or (2) a continuing mistreatment of a constitutional nature. 285 Kan. at 679.
Substantive Due Process
The district court correctly interpreted Watkins' petition to allege a claim under the substantive due process clause of the Fourteenth Amendment. The district court ruled that Watkins had failed to allege a procedural due process claim. Procedural due process comes into play only after a plaintiff has shown that he or she has a protected property or liberty interest. See Murphy v. Nelson, 260 Kan. 589, 598, 921 P.2d 1225 (1996). To adequately state a procedural due process claim to challenge the constitutionality of a procedure used within the SPTP, the petitioner must allege that both on its face, and as applied to him or her, implementation of the procedure has resulted in deprivation of a protected interest in life, liberty, or property without adequate notice and an opportunity to be heard. 260 Kan. at 598. Watkins does not allege that he was deprived of property, nor does Watkins challenge his confinement. With respect to the seclusion claim, he does not allege he is being subjected to continuing confinement in seclusion. Thus, there is no liberty interest at stake. The district court properly limited its analysis to a claim of substantive due process.
Watkins has been civilly committed as a sexually violent predator under the SPTP civil commitment statute “for control, care and treatment until such time as [his] mental abnormality or personality disorder has so changed that [he] is safe to be at large.” K.S.A.2010 Supp. 59–29a07(a). The State has a “compelling interest in providing treatment and protecting the public [that] prevails over the individual's interest in being free from compulsory confinement.” Johnson, 289 Kan. at 650.
Shocking and Intolerable Conduct
Watkins claims the following actions rise to the level of shocking and intolerable conduct: the search of his person during which he was slammed to the ground, the twisting of his arm back over his head, and placing him in seclusion without a doctor's order, and subjecting him to a videotaped strip search. “[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
Watkins fails to support his allegation of shocking and intolerable conduct with facts in his petition. Watkins complains about excessive force used to gain his compliance with the instructions given during a search of the facility and of his person. He acknowledges that the facility was on lockdown and a drug dog was searching the facility. When approached, Watkins asked the security officers for their search warrant and further stated “do not touch me.” In response, Watkins alleged that he was slammed to the ground and that his arm was twisted behind his back.
Watkins also claims that the excessive force used by the officers in conducting the search constituted shocking or intolerable conduct. Watkins now asserts on appeal that “[n]o manner of decency or humanity allows for such brutality by law enforcement.” However, an examination of Watkins' petition does not reveal facts that support an allegation of “brutality.” Watkins did not allege that he was injured by the officers' isolated show of force or that the body slam was brutal. The officers' reactions appear to be directly related to Watkins' resistance to the search. There are no facts or details in Watkins' petition that would constitute shocking or intolerable conduct. Rather, it appears that the officers' actions were consistent with maintaining order and discipline within the SPTP, a legitimate goal for treating and protecting the residents.
Watkins also claims his statutory right to remain free from seclusion was violated. The right to remain free from seclusion is codified in K.S.A.2010 Supp. 59–29a22(b)(6), which states:
“(6) Except as provided in paragraph (2), [each patient shall] have a right to be free from physical restraint and seclusion.
“(A) Restraints or seclusion shall not be applied to a patient unless it is determined by the superintendent of the treatment facility or a physician or licensed psychologist to be necessary to prevent immediate substantial bodily injury to the patient or others and that alternative methods to prevent such injury are not sufficient to accomplish this purpose. Restraint or seclusion shall never be used as a punishment or for the convenience of staff.”
Watkins claims he was placed in seclusion without the proper procedure of a doctor's order. We accept this as true for the purpose of evaluating whether his petition stated a cause of action. But not every statutory violation, though improper, constitutes shocking and intolerable conduct. Watkins does not allege facts that go beyond a statutory violation to allege shocking or intolerable conduct. There are no details about the conditions of his confinement in seclusion or the length of such confinement.
With regard to the claim that he was videotaped being strip searched, we have no facts or details surrounding this claim. A strip search may rise to the level of shocking or intolerable conduct. See Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir.1982) (undressing, dressing, and showering viewed by guards of opposite sex implicates right to privacy). But the United States Supreme Court recently has held that jail officials may strip search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband. See Florence v. County of Burlington, 566 U.S. ––––, 132 S.Ct. 1510, 1520–21, 182 L.Ed.2d 566(2012).
Without any details regarding the strip search, Watkins' petition does not contain an allegation of shocking or intolerable conduct. The strip search may have been as simple as pulling back his shirt to search for contraband or it may have consisted of a more intimate search of his body. The State properly characterizes Watkins' allegations as “vague and imprecise.” Although this court must accept Watkins' allegations as true in reviewing his K.S.A. 60–1501 petition, Watkins' conclusory statement that he was strip searched does not rise to a claim of shocking or intolerable conduct.
The district court did not err in finding no shocking and intolerable conduct to support Watkins' K.S.A. 60–1501 petition.
Continuing Mistreatment of a Constitutional Stature
Watkins' claim of continuing mistreatment of a constitutional stature is based on his allegation of excessive force and the allegation that Watkins “believes he is in reasonable apprehension of repeated immediate bodily harm by LSH Security, [Connell], Christopher Burke, and [Siedlecki].” On appeal, Watkins claims that he “could come forward with evidence that this is not an isolated incident and that it has occurred before and will continue unless the Court intervenes and stops it.” However, the current allegation of the existence of such evidence is not found in the petition. While Watkins alleged his personal belief, he failed to allege in his petition any facts that indicate that the conduct was recurring. He cannot predicate error by the district court on an assertion now made on appeal that was never made to the district court.
Unconstitutional Search Claim
Watkins claims that the SPTP violated his Fourth Amendment right to be free from unreasonable searches and seizures. Generally, courts determine the reasonableness of a search by balancing the State's interests against a person's right to be secure from unwarranted governmental intrusion. State v. Marx, 289 Kan. 657, 661, 215 P.3d 601 (2009). This court has recently reaffirmed that the Fourth Amendment applies to persons confined as sexually violent predators. Brull v. Jordan, No. 101,755, 2011 WL 420700, at *5 (Kan.App.2011) (unpublished opinion); see United States v. Shields, 522 F.Supp.2d 317, 332 (D.Mass.2007). But this court has also recognized the State's need to conduct reasonable searches within the SPTP. Although a sexually violent predator is not in the same position as a prisoner, the State has a compelling interest in the treatment of sexually violent predators. Thus, the State has a legitimate interest in monitoring the items in the possession of sexually violent predators in the SPTP in order to ensure the safety of all residents and advance its treatment goals. Williams v. DesLauriers, 38 Kan.App.2d 629, 633, 638, 172 P.3d 42 (2007).
With respect to the search of his person (which did not result in the seizure of any of Watkins' property), Watkins must claim “a ‘justifiable’, a ‘reasonable’, or a ‘legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). As an involuntarily confined patient under Watkins' circumstances, we find no reasonable expectations of privacy relative to the facts of this case. Watkins acknowledged that the SPTP unit was on lockdown and that a drug dog was being used in the search. The district court concluded that from the facts asserted in the petition the authorities had a “legitimate governmental interest to investigate the presence of any contraband, which could relate to the safety and treatment of SPTP patients and/or staff. The nature of the search on the date in question had a ‘real and substantial relation to the objective sought.’ [Chiles, 254 Kan. 888, Syl. ¶ 11.]”
Watkins is entitled to be free from unreasonable searches. See Bailey v. Howard, No. 106,573, 2012 WL 1072816, at *3–4 (Kan.App.2012) (unpublished opinion). But Watkins has failed to allege any facts suggesting that the search was unreasonable and did not conform to the State's compelling interest in searching and confiscating contraband.
The district court did not err in finding no unconstitutional search.
Conclusion
Watkins must show facts of “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler, 285 Kan. at 679. On its face, Watkins' petition does not allege conduct of a shocking or intolerable level or suggest that there is continuing mistreatment of a constitutional nature. To avoid summary dismissal of his K.S.A. 60–1501 petition, Watkins essentially argues that the district court should have given him the opportunity to develop those facts during an evidentiary hearing. But in Schuyler, our Supreme Court stated that the petitioner must show facts of “shocking and intolerable conduct or continuing mistreatment of a constitutional nature,” not just the potential for the development of such facts. 285 Kan. at 679. The district court did not err in summarily dismissing Watkins' petition for failure to state an actionable claim.
Affirmed.