WILLIAM LEE JACKSON V. MICHAEL COOPER
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RENDERED:
February 13, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0352-MR
WILLIAM LEE JACKSON
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE DANNY P. CAUDILL, JUDGE
ACTION NO. 96-CI-874
V.
MICHAEL COOPER
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
DYCHE, HUDDLESTON, and KNOPF, JUDGES.
KNOPF, JUDGE.
William Jackson, acting pro se, appeals an order
of the Floyd Circuit Court entered on January 16, 1997,
dismissing his petition for declaratory judgment brought pursuant
to KRS 418.040.
We affirm.
Jackson was an inmate at the Otter Creek Correctional
Center in June 1996.
On June 12, 1996, prison personnel
performed a random urine drug test using the ONTRAK drug
screening system.
After obtaining one positive test result,
Sergeant Steve Patton conducted a second ONTRAK drug test, which
also indicated a positive result.
Jackson was charged with
violating Corrections Policies and Procedures (CPP) Category IV-2
involving the unauthorized use of drugs.
After a preliminary
investigation, the prison Adjustment Committee conducted a
hearing and found Jackson guilty of violating the prison
regulation.
The Adjustment Committee imposed a penalty of sixty
(60) days forfeiture of good time.
Jackson appealed the
Adjustment Committee's findings to the prison warden, Michael
Cooper, who concurred with the decision.
On December 9, 1996, Jackson filed a petition for
declaratory judgment seeking reversal of the disciplinary action
and expungment of the disciplinary report from his record on
grounds the drug testing was unreliable.
On December 26, 1996,
Cooper filed an answer to the petition and a motion for summary
judgment under Rule of Civil Procedure (CR) 56 with accompanying
memorandum in support.
Cooper maintained that Jackson received
sufficient due process and there were no facts in dispute.
On
January 16, 1996, the circuit court issued an order dismissing
the petition with prejudice.
This appeal followed.
A petition for declaratory judgment pursuant to KRS
418.040 has become a common vehicle for prison inmates seeking
review of their disputes with the Corrections Department.
Polsgrove v. Kentucky Bureau of Corrections, Ky., 559 S.W.2d 736
(1977); Graham v. O'Dea, Ky. App., 876 S.W.2d 621 (1994).
While
technically an original action, such inmate petitions share many
of the aspects of appeals of administrative actions.
In effect,
the circuit court is acting as a court of review, and the review
afforded is limited to the administrative record.
The court
seeks not to form its own judgment, but with due deference to the
administrative body, it seeks to insure that the agency's
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judgment comports with the legal restrictions applicable to it.
American Beauty Homes Corp. v. Louisville & Jefferson County
Planning and Zoning Comm'n., Ky., 379 S.W.2d 450 (1964).
The
focal point for this judicial review is the existing
administrative record.
Thus, these petitions present
circumstances in which the need for independent judicial fact
finding is greatly reduced.
The circuit court's fact finding
capacity is required only if the administrative record does not
permit meaningful review.
Consequently, where principles of
administrative law and appellate procedure are implicated in the
circuit court's decision, the usual summary judgment analysis
must be qualified.
In these circumstances, summary judgment in
favor of the prison authorities is proper if and only if the
inmate's petition and any supporting materials, construed in
light of the entire agency record (including, if submitted,
administrator's affidavits describing the context of their acts
or decisions), does not raise specific, genuine issues of
material fact sufficient to overcome the presumption of agency
propriety, and the authorities are entitled to judgment as a
matter of law.
Smith v. O'Dea, Ky. App., 939 S.W.2d 353, 356
(1996).
Jackson argues the disciplinary action violated his
constitutional rights to equal protection1 and due process.
1
More
The drug tests were conducted pursuant to a prison policy
of random drug tests of inmates. Jackson's equal protection
claim has no merit because he presents no factual or legal
support for his equal protection claim. Therefore, we will not
address this issue.
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specifically, he contends the Abuscreen ONTRAK assay test for THC
provides only a preliminary analytic test result and therefore is
inherently unreliable.
He points out that the documentation of
the test's manufacturer suggests that a more specific alternate
chemical method should be used to confirm the ONTRAK test.
Thus,
he asserts that the ONTRAK test is not sufficiently reliable on
which to base prison disciplinary actions.
He also maintains
that the evidence utilized by the Adjustment Committee was
unreliable because there was no chain of custody form prepared by
the corrections officers.
The courts have recognized that internal prison
security is a legitimate penological objective.
See Procunier v.
Martinez, 416 U.S. 396, 412, 94 S. Ct. 1800, 1811, 40 L. Ed. 2d
224 (1974).
Procedural and substantive due process rights are
necessarily circumscribed by the penological need to provide
swift discipline in individual cases and the very real dangers of
violence or intimidation in prison life.
Ponte v. Real, 471 U.S.
491, 495, 105 S. Ct. 2192, 2195, 85 L. Ed. 2d 553 (1985).
A
highly deferential standard of judicial review is
constitutionally appropriate with respect to both the fact
finding that underlies prison disciplinary decisions and the
construction of prison regulations.
at 357.
Smith v. O'Dea, 939 S.W.2d
In Superintendent, Massachusetts Correctional
Institution v. Hill, Walpole, 472 U.S. 445, 454, 105 S. Ct. 2768,
2773, 86 L. Ed. 2d 356 (1985), the Unites States Supreme Court
articulated the quantum of evidence required to support a
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decision in a prison disciplinary proceeding consistent with due
process as "some evidence in the record."
supra.
Accord Smith v. O'Dea,
The minimal "some evidence" standard, however, requires
that the evidence relied upon by the fact finder have some
indicia of reliability.
See O'Dea v. Clark, Ky. App., 883 S.W.2d
888, 892 (1994); Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.
1987).
In Spence v. Farrier, 807 F.2d 753 (8th Cir. 1986), the
Court held that the EMIT (Enzyme Multiple Immunoassay Test) for
urinalysis testing of prison inmates for suspected use of drugs,
with a confirmatory second test, contained sufficient indicia of
reliability to provide some evidence of drug use and to form a
basis for disciplinary action.
The Court noted that although it
was conceivable that an inmate could be unjustly disciplined as a
result of EMIT tests, the margin of error was insignificant in
light of the institutional goals of discipline, order and
security.
Id. at 756.
The Court said, "states need not
implement all possible procedural safeguards against erroneous
deprivation of liberty when utilizing results of scientific
testing devices in accusatory proceedings."
Id. (citing Wycoff
v. Resig, 613 F. Supp. 1504 (N.D. Ind. 1985)).
In Spence, the
Court listed several cases where courts have found EMIT testing
sufficiently reliable to satisfy due process.
Similarly, in
Higgs v. Bland, 888 F.2d 443 (6th Cir. 1989), the Sixth Circuit
found that a positive EMIT test result constituted "some
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evidence" on which the Adjustment Committee could conclude a
particular inmate was guilty of improper drug use.
Jackson argues that the drug test evidence presented to
the Adjustment Committee was insufficient to support the
disciplinary actions.
We disagree.
First, Jackson alleges that
the results were unreliable because the corrections officers who
administered the tests were not qualified laboratory technicians
or authorized medical professionals.
The appellee, however,
presented evidence to the circuit court that both Sgt. Steven
Patton and corrections officer Jimmy Gibson, who witnessed the
tests, had attended workshops and received training by Roche
Diagnostic Systems, the manufacturer of the ONTRAK testing
procedure.
In addition, a second confirmatory test was performed
shortly after the first test with positive results on both
occasions.
Jackson.
Both tests were witnessed by Jimmy Gibson and
In Ransom v. Davies, 816 F. Supp. 681 (D. Kan. 1993),
the Court described the ONTRAK test as an immunoassay test
similar to the EMIT.
The court indicated a testing procedure
utilizing the ONTRAK testing system with a second confirmatory
test, would be sufficient to satisfy due process and the "some
evidence" standard of Superintendent v. Hill, supra.
We believe
the record and facts in our case support the decision of the
Adjustment Committee finding Jackson guilty of improper drug use
based on the multiple ONTRAK drug tests.
Jackson's contention that the circuit court's order of
dismissal constituted a sua sponte dismissal in violation of the
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principals enunciated in Gall v. Scroggy, Ky. App., 725 S.W.2d
867 (1987)(involving CR 12.02 motions) and Storer Communications
v. Oldham County, Ky. App., 850 S.W.2d 340 (1993)(involving CR 56
motions) is without merit.
The petition was served on the
appellee, and he filed an answer and motion for summary judgment.
Jackson had sufficient opportunity to supplement his petition and
supporting memorandum of law.
The record before the circuit
court contained all the necessary documents associated with the
Adjustment Committee's action.
The circuit court stated its
reasons for the dismissal in its order.
Jackson has demonstrated
no prejudice from the procedure used by the circuit court in
handling the case.
The circuit court's action was consistent
with the standard for granting summary judgment in prison
disciplinary actions as stated in Smith v. O'Dea, supra.
For the foregoing reasons, we affirm the judgment of
the Floyd Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William Lee Jackson, Pro Se
West Liberty, Kentucky
No brief filed.
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