Opinion
NO. 2018-CA-001141-MR
05-10-2019
MICHAEL DEAN VAUGHAN APPELLANT v. JAMES L. ERWIN and LELIA A. VANHOOSE APPELLEES
BRIEF FOR APPELLANT: Michael Dean Vaughan, Pro Se LaGrange, Kentucky NO BRIEF FOR APPELLEES
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 18-CI-00047 OPINION
AFFIRMING
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BEFORE: ACREE, LAMBERT, AND MAZE, JUDGES. LAMBERT, JUDGE: Michael Dean Vaughan has appealed from the July 3, 2018, order of the Franklin Circuit Court denying the motion to reconsider the order dismissing his petition for declaratory relief. We affirm.
Vaughan is currently housed at the Luther Luckett Correctional Complex in LaGrange, Kentucky, after having been convicted by the Kenton Circuit Court in 2016 of six counts of first-degree wanton endangerment pursuant to a guilty plea and sentenced to a total of twenty years' imprisonment. While housed at the Roederer Correctional Complex, Vaughan filed a petition for declaration of rights with the Franklin Circuit Court on March 30, 2018, seeking a declaratory judgment and injunctive relief against James L. Erwin, the Commissioner of the Kentucky Department of Corrections (the DOC), and Leila A. VanHoose, the Chairwoman of the Kentucky Parole Board (the respondents). The question he raised was whether first-degree wanton endangerment was a violent offense (he contended that it was not) and, therefore, whether the DOC and the Parole Board could classify such an offense as a violent one. He argued that the DOC and the Parole Board arbitrarily classified his first-degree wanton endangerment convictions as violent Class D felonies in contravention of Kentucky Revised Statutes (KRS) 439.3401. This, he maintained, caused his custody level to be reclassified and raised from minimum to medium by the DOC via use of an override and a parole deferment from the Parole Board. Vaughan stated his appeals of this classification to the DOC and the Parole Board were denied due to a conflict of interest. In his petition, Vaughan addressed the DOC's Manual for Classification, the Parole Board's Offense Severity Index, his offense classification by the DOC, the violation of his liberty interest created by KRS 439.3401, conflict of interest of Roederer's warden, problems with the parole process, and procedural errors by the Parole Board related to his offenses.
Indictment No. 14-CR-00204.
In its October 10, 2017, review, the Parole Board opted to defer consideration of Vaughan's parole for 24 months, noting the seriousness of the offense, that violence was involved, the crime involved a firearm or deadly weapon or instrument, his prior misdemeanor conviction, and Vaughan's history of assaultive behavior. Vaughan's petition for reconsideration was denied, noting there was no substantiated misconduct by a board member, no significant procedural error by a board member, and that no significant new evidence was available that was not available at the parole hearing. Parole Board Chair VanHoose noted that the offenses involved the intentional or reckless and wanton conduct that was likely to result in death or serious physical injury, that Vaughan had a history of assaultive behavior, and that he had a prior misdemeanor conviction for violating an EPO/DVO. --------
For his requested relief, Vaughan sought declarations that first-degree wanton endangerment was not a violent offense pursuant to KRS 439.3401, that the DOC was prohibited from classifying non-violent offenses as violent and violent offenses as non-violent in the Manual for Classification, that the DOC arbitrarily classified him as having committed a violent Class D felony, that KRS 439.3401 created a liberty interest, that his liberty interest was violated by his classification, that the DOC improperly created the Offense Severity Index and improperly increased the severity ratings for offenses, that the Parole Board committed procedural errors in his case, and that he was denied a neutral adjudicator for his classification appeal. In addition, Vaughan sought injunctive relief in the halting of classification and the Parole Board processes pending further order of the court or barring the use of Section 8 of the Manual for Classification and the Offense Severity Index, that he be reclassified with the DOC being barred from stating that wanton endangerment was a violent felony, that he be reconsidered for parole after being reclassified, and that the DOC and Parole Board be barred from retaliating against him for seeking relief.
In lieu of filing an answer, respondents moved to dismiss Vaughan's petition, we presume pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f) for failure to state a claim upon which relief could be granted. Vaughan had originally been charged with six counts of criminal attempt to commit murder, one count of arson, and one count of first-degree wanton endangerment, and he later entered a plea to six counts of first-degree wanton endangerment. The respondents described the crux of Vaughan's argument as follows:
[B]ecause First Degree Wanton Endangerment is not classified as a violent offender offense under KRS 439.3401, the Department of Corrections may not classify First Degree Wanton Endangerment as a violent offense for the purposes of determining his custody classification [nor] may the Parole Board consider any violence involved in the actual offense when making a decision to deny parole.The respondents argued that Vaughan did not have a protected liberty interest in a particular classification, citing Mahoney v. Carter, 938 S.W.2d 575 (Ky. 1997). They also argued that KRS 439.3401 limited the availability of probation and parole on a convicted person, but it did not place any limits on the DOC as to what custody classification it could assign to an inmate. In addition, the Parole Board must consider the case history in determining whether an eligible person is suitable for parole.
Vaughan's Presentence Investigations (PSI) report, which was set forth in the respondents' pleading, provided the following narrative describing the circumstances that led to his charges:
At approximately 1830hrs, SWAT negotiators began communicating with Vaughan via phone calls and text messages. Vaughan began threatening officers stating, 60 seconds or die cause he has sight on 3 officers. Vaughan then began firing shots nearly striking officers. Vaughan continued with threats stating, Send your boys in, I don't negotiate. Vaughan fired at officers again as 3 rounds struck the body bunker shield that a team member was carrying for protection. At 2114hrs, the defendant fired approximately 6 more shots at SWAT officers from the 2" floor window. Several more shots were fired at SWAT officers through out the night and into the morning hours as SWAT negotiators continued to plea with Vaughan to end the standoff and to release the children. Multiple officers reported that several rounds fired from the house went directly over their heads and/or in close proximity to them. Vaughan also struck a tactical vehicle several times that was occupied by officers and being used for cover by officers. At approximately 0400hrs, the suspect again shot at SWAT officers when an officer returned fire for the first time. At approximately 0830, the negotiators were able to talk Vaughan into releasing the children. At approximately 1230hrs, SWAT officers fired and struck Vaughan through the third floor windows as they observed Vaughan prepare to fire and possibly firing at officers on the north side of the residence. Vaughan called a negotiator and stated that he had been shot. He was advised to climb out of a window due to having the doors being screwed shut. Vaughan came out, was taken into
custody, and transported by ambulance to UC Hospital Emergency Room. Vaughan suffered a bullet wound in his right shoulder that is believed to have traveled through his right triceps. [Spelling and grammatical errors in original.]The respondents concluded that because Vaughan had engaged in seriously violent behavior in committing the acts for which he was convicted, that information was appropriate for the DOC and Parole Board to consider in classifying him and in denying him parole.
In reply, Vaughan argued that the dispositive question was whether first-degree wanton endangerment was a violent offense and that Mahoney was inapplicable because he did not request a specific security classification and because the liberty interest arose from a statute, not a prison regulation. He also believed the Parole Board exceeded its discretion in considering his original charges and the PSI report when the trial court had decided he had only committed non-violent offenses. Vaughan later filed a motion for the court to take judicial notice of a memorandum related to time credits under Senate Bill (SB) 123 dated April 22, 2003, to the Branch Manager for Offender Information Services from the Branch Manager for Private Prisons. The memorandum discussed the interpretation of SB 123 relating to the eligibility for time credits and provided that the General Counsel and a staff attorney supported "the interpretation of using the definition for 'violent offense' as is currently applied from the language in paragraph (1) of KRS 439.3401. The reasoning . . . is that SB 123 is newly enacted legislation referring to a definition in an existing statute. We could, therefore, use the definition of 'violent offense' in its most current form." The memorandum went on to list the offenses that would be excluded from receiving time credits.
By order entered June 15, 2018, the circuit court granted the respondents' motion to dismiss. The court agreed with the respondents that pursuant to Mahoney, supra, an inmate does not have a protected liberty interest in a particular classification and, so long as the conditions of his confinement did not exceed his sentence or otherwise violate the Constitution, his treatment by prison officials is not subject to judicial oversight pursuant to the due process clause. It held that KRS 439.3401 only places limits on the availability of probation and parole, not on the DOC as to custody classifications. And the DOC was allowed to use classification overrides and had unlimited discretion in how it used that option as long as it was used in accordance with the DOC procedures. As to the Parole Board, the circuit court stated that it was not limited to review of the elements of the crime for which the inmate was convicted, but it rather had to determine whether it was in the best interest of society that a person be released from incarceration. In Vaughan's case, the PSI report detailed the 18-hour standoff with SWAT negotiators and that he had threatened to and shot at officers before surrendering.
Vaughan moved the court to reconsider and expand its opinion, stating that he had never requested a specific security classification and that the court had not addressed all the issues he had raised in his petition. The court denied this motion by order entered July 3, 2018, stating that Vaughan failed to assert a viable claim, and this appeal now follows.
Our standard of appellate review is set forth in Campbell v. Ballard, 559 S.W.3d 869, 870-71 (Ky. App. 2018):
Upon appellate review, dismissals for failure to state a claim under CR2 12.02(f) are reviewed de novo. Carruthers v. Edwards, 395 S.W.3d 488, 491 (Ky. App. 2012). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (citing Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009)). The pleadings are to be "liberally construed in a light most favorable to the plaintiff[,]" and all allegations in the complaint are to be taken as true. Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007) (citing Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)); see Pike v. George, 434 S.W.2d 626, 627 (Ky. 1968) ("For the purpose of testing the sufficiency of the complaint the pleading must not be construed against the pleader and the allegations must be accepted as true.").With this standard in mind, we shall review Vaughan's appeal.
On appeal, Vaughan continues to seek a ruling as to whether first-degree wanton endangerment is a violent offense based upon the legislature's definition of "violent offense" in KRS 439.3401, to argue that KRS 439.3401 created a liberty interest, and to deny that he was seeking a specific security classification. We disagree with Vaughan's assertion that he was not seeking a specific security classification, because there is no reason for him to seek review of his classification other than to have it lowered. Rather, he is seeking to circumvent settled case law on this issue by seeking a ruling that first-degree wanton endangerment is not a violent offense, which he contends the DOC must then follow for all purposes. Such a ruling in his favor would then create a domino effect, he states, thereby necessitating his reclassification and the reconsideration of his parole. We reject Vaughan's arguments.
KRS 439.3401, also known as the Violent Offender Statute, sets forth offenses that the General Assembly has deemed to be violent for purposes of determining parole eligibility for offenders. The list of offenses does not include first-degree wanton endangerment. However, the statute does not require the DOC to follow it for all purposes, nor does it create a liberty interest, as Vaughan would have us rule.
The circuit court correctly cited to Mahoney v. Carter, 938 S.W.2d 575 (Ky. 1997), for the ruling of law that an inmate does not have a liberty interest in a particular classification:
Appellant contends that the trial court erred when it failed to recognize that the policies and procedures of the Corrections Department, by placing substantial limitations on official discretion, create a constitutionally protected liberty interest which accords him a legitimate claim of entitlement to a minimum security custody status. To resolve this issue, we must first determine whether the procedures and policies create such a protected liberty interest under the Fourteenth Amendment. "A liberty interest protectible under the Fourteenth Amendment may arise only when implicated by the Constitution, or a state law or regulation." Beard v. Livesay, 798 F.2d 874, 875 (1986) citing Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). Unlike persons who are free in society, persons who are lawfully incarcerated have only the narrowest range of protected liberty interests. Hewitt, 459 U.S. at 467, 103 S.Ct. at 869. It is well established that a prisoner has no inherent right to a particular security classification or to be housed in a particular institution. Beard, 798 F.2d at 876. In fact, so long as the conditions or the degree of confinement to which the prisoner is subjected do not exceed the sentence which was imposed and are not otherwise in violation of the Constitution, the due process clause of the Fourteenth Amendment does not subject an inmate's treatment by prison authorities to judicial oversight. Hewitt, 459 U.S. at 468, 103 S.Ct. at 869-70. Therefore, any liberty interest which may apply to appellant must be created by state law or regulation.
Actions of a state which create such a liberty interest were outlined by the United States Supreme Court as follows:
[A] State creates a protected liberty interest by placing substantial limitations on official discretion. An inmate must show 'that particularized standards or criteria guide the State's decisionmakers.' [citations omitted] If the decisionmaker is not 'required to base its decisions on objective and defined criteria,' but instead 'can deny the requested relief for any constitutionally permissible reason or for no reason at all,' [citations omitted] the State has not created a constitutionally protected liberty interest.
Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813, 823 (1983). It has also been held that prison officials may create liberty interests through official promulgations, policy statements, or regulations. Walker v. Hughes, 558 F.2d 1247, 1255 (6th Cir. 1977).
Where statutes or prison policy statements have limited prison officials' discretion by imposing a specific prerequisite to the forfeiture of benefits or favorable living conditions enjoyed by a prisoner, an expectation or entitlement has been created which cannot be taken away without affording the prisoner certain due process rights. On the other hand, when prison officials have complete discretion in making a decision that will affect the inmate, no expectation or protected liberty interest has been created.
Beard, 798 F.2d at 877 (quoting Bills v. Henderson, 631 F.2d 1287, 1291 (6th Cir. 1990)).
In the case at bar, the Department of Corrections policy and procedures in effect at the relevant time mandated that the Reclassification Committee conduct a
review of appellant's custody status using the Reclassification Custody Form provided to the Committee by the Department. The use of the reclassification document, as required, resulted in a score which strongly indicated that appellant's custody status should be changed from medium to minimum. However, the policy also provided that "[i]n some cases the Reclassification Custody Form may provide a custody score which is inappropriate. In those situations the Classification Committee may use an override to change the custody level of the inmate to a more appropriate level." Section Six. Reclassification Summary. The Reclassification Summary continues and under the heading Instructions For The Use Of Overrides states that "[e]ach of these overrides should only be used in situations where the Classification Committee believes that the initial custody level obtained from the point score is inappropriate."
Although the Reclassification Committee's actions are restricted in some ways, such as times for review and forms to be used, unlimited discretion is also allowed, specifically in the utilization of the override option. The Corrections Department's policies and procedures closely reflect those that were considered in Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). While the regulations considered in Thompson differed in that they addressed a prisoners' receipt of visitors, the United States Supreme Court ruled in such a manner as to allow general application. The Court held that
[s]tate regulations containing a nonexhaustive list of categories of state prison visitors who 'may' be excluded from visiting prison inmates do not give the inmates, for purposes of the due process clause of the Federal Constitution's Fourteenth Amendment, a liberty interest in receiving visitors excluded under the
regulations, despite the fact that the regulations provide 'substantive predicates' to govern prison decisionmakers in determining whether to allow visitation, because the regulations stop short of requiring that a particular result be reached upon a finding that the substantive predicates have been met; the regulations do not have the overall effect such that an inmate can reasonably form an objective expectation that a visit will necessarily be allowed absent the occurrence of one of the listed conditions for exclusion.
Mahoney, 938 S.W.2d at 576-77.
In this case, utilization of the override was in accordance with the procedures of the Corrections Department which state that "[t]he Central Office Classification Committee shall have the final authority to review, approve or alter classification actions." Upon this basis, we conclude that the policies and procedures of the Department of Corrections did not create a liberty interest and appellant therefore had no right to a minimum security classification.
KRS 439.3401 does not provide a liberty interest to Vaughan as to classifications related to its definition of a violent offense because it only specifically applies to when an inmate is eligible to be considered for parole or probation. And Vaughan has failed to establish, or even argue, that the Reclassification Committee's decision to reclassify him was not done in accordance with the DOC's procedures. Therefore, the circuit court did not commit any error in dismissing Vaughan's petition.
While Vaughan did not address the Parole Board in his appellate brief, we also hold that the circuit court did not err in that part of its ruling. "A parole shall be ordered only for the best interest of society" pursuant to KRS 439.340(2), and the Parole Board must "[s]tudy the case histories of persons eligible for parole, and deliberate on that record" as set forth in KRS 439.330(1)(a). Therefore, the Parole Board was permitted to consider the circumstances of Vaughan's crime and the information contained in his PSI report, detailing the actions that led to his arrest and conviction for wanton endangerment.
For the foregoing reasons, the order of the Franklin Circuit Court dismissing Vaughan's petition is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Michael Dean Vaughan, Pro Se
LaGrange, Kentucky NO BRIEF FOR APPELLEES