Opinion
NO. 2016-CA-001568-MR
09-15-2017
JOHN TILLMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Tillman, pro se Eastern Kentucky Correctional Complex West Liberty, Kentucky BRIEF FOR APPELLEE: Elisabeth Fitzpatrick Justice & Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 16-CI-00274 OPINION
AFFIRMING
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BEFORE: ACREE, MAZE, AND NICKELL, JUDGES. MAZE, JUDGE: John Tillman brings this pro se appeal from an order of the Muhlenberg Circuit Court dismissing his petition for a declaration of rights. Because Tillman was not deprived of a protected liberty interest as a result of his prison disciplinary case, we affirm.
Tillman's notice of appeal lists the only the Commonwealth as appellee. As a general rule, the warden of the prison is an indispensable party to an appeal from a declaratory judgment regarding a prison disciplinary action. But in such cases, it is sufficient to name the agency or the agency head as a party. Lassiter v. American Express Travel Related Services Co., Inc., 308 S.W.3d 714, 719 (Ky. 2010). While Tillman only named the Commonwealth as a party in the style of his notice of appeal, he directed service to the Justice and Public Safety Cabinet, which has appeared and responded to his appeal. We deem Tillman's filing to be minimally sufficient to bring all indispensable parties before the Court. Therefore, in the absence of any objection or showing of prejudice by the Cabinet, we decline to dismiss Tillman's appeal. See Flick v. Estate
An internal affairs investigation at Green River Correctional Complex revealed that Tillman conspired with other inmates to bring drugs into the prison and distribute them. The investigation relied on "no less than" five statements by confidential informants, as well as evidence on JPay. When Lieutenant Ron Edwards questioned Tillman concerning the allegations, Tillman denied having "anything on JPay" or being involved in any way._
JPay, Inc. is a company which allows non-inmates to transfer funds to inmates.
Tillman was charged with possession or promoting of dangerous contraband under Kentucky Corrections Policies and Procedures (CPP) 15.2(II)(C)(VI)(3). Adjustment Officer Robert E. Henning (AO) presided over the disciplinary hearing. The AO found the confidential information he received to be "accurate" because the inmates' statements corroborated each other. The AO also noted that "[i]nformation provided by inmates [that] have given reliable information in the past, even to this officer." Citing the confidential information and the statements contained in the investigatory report, the AO found Tillman guilty and sentenced him to 90 days' disciplinary segregation. Warden DeEdra Hart denied Tillman's appeal. On July 13, 2015, Tillman filed a petition for declaration of rights in the Franklin Circuit Court. The matter was transferred to of Wittich, 396 S.W.3d 816, 822 (Ky. 2013). Muhlenberg Circuit Court. On August 3, 2016, the Muhlenberg Circuit Court summarily dismissed the petition. This appeal follows.
Tillman's disciplinary form states he was charged an offense under Category 6, Item 4. However, Tillman was actually charged with an offense under Category 6, Item 3.
On appeal, Tillman primarily argues he was denied procedural due process because the confidential informants in his disciplinary hearing were not shown to be reliable, that the AO failed to make specific findings of fact, and that the AO had a conflict of interest because he had previously received information from some of the confidential informants in Tillman's case. He also argues the circuit court did not make any findings when the court dismissed under CR 12.02(f).
Kentucky Rules of Civil Procedure. --------
Prisoners subject to disciplinary proceedings do not enjoy the full panoply of due process protections. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). In order to comply with the minimum requirements of procedural due process, an inmate cannot be deprived of a protected liberty interest unless he receives: "(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 his defense; and (3) a written statement by the fact-finder of the evidence relied on and the reasons for the disciplinary action." Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985) (citation omitted). Due process requires also that there be "some evidence" in the record to support the disciplinary board's decision. Id.
Tillman contends he was deprived of a protected liberty interest as a result of his disciplinary violation. Tillman was sentenced to 90 days' disciplinary segregation as a result of his violation with no loss of statutory good time credits.
[W]hile it is true that an individual is entitled to due process under the Fourteenth Amendment before his life or property can be taken from him, an inmate making such a claim must demonstrate that he was deprived of a protected liberty or property interest by arbitrary governmental action.Hill v. Thompson, 297 S.W.3d 892, 897 (Ky. App. 2009). "[D]isciplinary segregation typically does not implicate a liberty interest protected by the Due Process Clause itself because it is the sort of confinement an inmate can reasonably anticipate receiving." Marksberry v. Chandler, 126 S.W.3d 747, 749-50 (Ky. App. 2003) (footnote omitted). In order to demonstrate that a period of disciplinary segregation deprived the inmate of a protected liberty interest, the inmate must establish that it "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 750 (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418 (1995)). Factors relevant to making this determination include: "(1) the effect of the segregation on the length of prison confinement under the original sentence; (2) the extent to which the conditions of the segregation differ from other routine prison conditions; and (3) the duration of the segregation imposed." Id. (citing Sandin, 515 U.S. at 486-87, 115 S. Ct. at 2301-02).
Tillman does not argue that his period of disciplinary segregation created a protected liberty interest. Furthermore, the amount of time Tillman spent in disciplinary segregation was not excessive. Finally, Tillman has not asserted that the conditions of his disciplinary segregation were more onerous than the conditions of disciplinary segregation generally. See Marksberry, 126 S.W.3d at 750-51.
Instead, Tillman's argument focuses on the loss of good time credits. Specifically, Tillman asserts that he forfeited seven days of good time credit and could potentially have lost more. An inmate has a protected liberty interest in receiving statutory good time credits. Wolff, 418 U.S. at 557, 94 S. Ct. at 2975. However, Tillman's disciplinary report does not state that he lost any statutory good time credits due to this violation. Rather, Tillman seems to refer to the loss of meritorious, as opposed to statutory, good time credits. It is well established that inmates do not have a protected liberty interest in the loss of these credits. Marksberry, 126 S.W.3d at 753; Hill, 297 S.W.3d at 897; Anderson v. Parker, 964 S.W.2d 809, 810 (Ky. App. 1997). The record provides absolutely no support for Tillman's assertion that he was deprived of a protected liberty interest due to his disciplinary violation. As a result, his procedural due process arguments must fail.
Finally, Tillman disputes the circuit court's findings of fact under CR 12.02(f). However, Tillman made this argument for the first time in his reply brief, and we decline to consider it. See Catron v. Citizens Union Bank, 229 S.W.3d 54, 59 (Ky. App. 2006). Moreover, since Tillman has not made a sufficient showing that he was deprived of any protected interest, the lack of findings do not impede the resolution of any issue on appeal.
The judgment of the Muhlenberg Circuit Court's order dismissing Tillman's declaratory judgment action is affirmed.
NICKELL, JUDGE, CONCURS.
ACREE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
ACREE, JUDGE, DISSENTING. Respectfully, I dissent. The majority concludes that Tillman's notice of appeal was "minimally sufficient" to confer this Court with jurisdiction to hear his appeal. I cannot agree.
Minimally sufficient can mean nothing less than substantially compliant. Even when we apply the rationales of the cases cited in the majority's footnote 1, Flick and Lassiter, Tillman's notice of appeal was not substantially compliant with our rules.
In Flick v. Estate of Wittich, 396 S.W.3d 819 (Ky. 2013), the question was whether notice to an estate was sufficient notice to the co-administrators who were not expressly named. Id. at 817. The Supreme Court held "the Estate and its co-administrators are one and the same party. Therefore, requiring separate and distinct naming of the co-administrators as parties here would serve no rational purpose." Id. at 821-22. This point of law in Flick is based on Lassiter v. American Exp. Travel Related Services Co., Inc., 308 S.W.3d 714, 719 (Ky. 2010), in which our Supreme Court quoted the Supreme Court of the United States for the proposition that "the naming of the agency head in his official capacity in a lawsuit is the functional equivalent of naming the agency itself." Id. at 719 (citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099 (1985)). Extrapolating, our Supreme Court said, "the converse must likewise be recognized, and that the naming of an agency to a lawsuit is equally the functional equivalent of naming the agency's head in his official capacity." Lassiter, 308 S.W.3d at 719.
Applying those cases to the facts before us convinces me we lack jurisdiction to proceed.
In the trial court, Tillman did not name the agency (Department of Corrections), but he did name the agency head (Commissioner of the Department of Corrections, Rodney Ballard), as well as the adjustment officer who heard his case originally and the warden of the prison where he is incarcerated and who was first to review the decision of the adjustment officer. Tillman's notice of appeal fails to name either the agency head or the agency in either its caption or its body. None of the individuals named in the petition in circuit court were named in the caption or the body of the notice of appeal. The prison where he was incarcerated was not named in the caption or the body, nor was the Department of Corrections named in the caption or the body. The notice of appeal was not served on any of the parties to the circuit court action, nor on the prison, nor on the Department of Corrections.
I acknowledge that an agency and an agency head are interchangeable for purposes of a notice of appeal; if one or the other appears in the caption or the body of the notice of appeal, that is sufficient to invoke this Court's jurisdiction. Those are the holdings of Flick and Lassiter. However, when neither the agency nor agency head, nor any party to the circuit court action at all, is named in either the body or the caption of the notice of appeal, then this Court's jurisdiction has not been invoked. That is, in effect, what Brown v. Preece said. 392 S.W.3d 388, 392 (Ky. 2013) (unanimous opinion) ("it is obvious beyond dispute that [an indispensable party] was not made a party to the appeal. Her name appears on neither the caption, nor in the body of Appellant's Notice of Appeal.").
Tillman named only the Commonwealth as an appellee. There are at least three significant problems with accepting this as substantial compliance in an appeal from a prisoner declaration of rights action brought after imposition of prisoner discipline. First, there is no authority for it and neither Flick nor Lassiter provide such authority. Second, the Commonwealth was not even a party in the circuit court; Tillman cannot exact relief on appeal from a party that was never before the circuit court. Third, accepting the naming of the Commonwealth as a substitute for naming the Department of Corrections in this notice would create a rule that naming the Commonwealth only is acceptable as a substitute for naming on appeal any and all of the numerous state agencies which are the actual indispensable parties. That is quite a can of worms and a procedural nightmare we would be visiting upon the Office of the Attorney General to sort out where the notice should actually have gone.
Furthermore, it is not sufficient that service of the notice was sent to the Justice and Public Safety Cabinet, the Cabinet that oversees four state agencies in addition to the Department of Corrections. In City of Devondale v. Stallings, dismissal of the appeal was ordered where two indispensable parties were not specifically named as parties in the notice of appeal, even though these same indispensable parties were served with copies of the notice and subsequent pleadings in the appeal. 795 S.W.2d 954, 957 (Ky. 1990). The appellant in City of Devondale failed to name in the notice of appeal, in either the caption or the body the City of Louisville and Jefferson County - two indispensable parties. The Supreme Court said:
The movant argues that the City of Louisville and Jefferson County had actual notice of the appeal because they received a certificate of service. Therefore, the movant contends that it was error to deny its request to correct a technical procedural defect before any harm resulted. A majority of the Court does not agree with this position, and we therefore affirm the decision of the Court of Appeals.Id. at 956. The case before us is one more step removed; the agency was not served but rather service was sent to the Cabinet that oversees the indispensable party agency and four other state agencies.
Finally, the fact that the Justice and Public Safety Cabinet appeared and responded to the appeal is irrelevant. As we said in Watkins v. Fannin, "we note as irrelevant the fact that the Cabinet, which defended this appeal, has not raised this issue; an appellate court may not acquire jurisdiction through waiver." 278 S.W.3d 637, 643 (Ky. App. 2009). This point of law in Watkins derived from Wilson v. Russell in which the Supreme Court said: "even though not raised, 'jurisdiction may not be waived, and it can not be conferred by consent of the parties. This [C]ourt must determine for itself whether it has jurisdiction.'" 162 S.W.3d 911, 913 (Ky. 2005) (quoting Hubbard v. Hubbard, 197 S.W.2d 923 (1946)).
I do not believe this Court has jurisdiction to entertain Tillman's appeal. For that reason, I respectfully dissent. BRIEFS FOR APPELLANT: John Tillman, pro se
Eastern Kentucky Correctional
Complex
West Liberty, Kentucky BRIEF FOR APPELLEE: Elisabeth Fitzpatrick
Justice & Public Safety Cabinet
Frankfort, Kentucky