STEVE L. MONROE v. WARDEN, EASTERN KENTUCKY CORRECTIONAL COMPLEX (EKCC)
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RENDERED: December 18, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002152-MR
STEVE L. MONROE
v.
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 97-CI-00111
WARDEN, EASTERN KENTUCKY
CORRECTIONAL COMPLEX (EKCC)
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
HUDDLESTON, KNOPF and MILLER, Judges.
HUDDLESTON, Judge.
Steve Monroe appeals pro se from a Morgan
Circuit Court order that dismissed his Petition for Declaration of
Rights brought pursuant to Kentucky Revised Statute (KRS) 418.040.
Finding no error, we affirm.
Monroe currently is an inmate at the Eastern Kentucky
Correctional Complex (EKCC) at West Liberty, Kentucky.
On the
morning of April 23, 1997, EKCC Corrections Officers J. Justice and
J. Hill conducted a search of Monroe's prison cell.
During the
search, the officers found 20 packs of KOOL cigarettes and a goldcolored watch.
When questioned about these items by the officers,
Monroe stated that he was holding the cigarettes for another inmate
and that he had bought the watch from another inmate.
Officer Hill prepared a Disciplinary Report Form and
reported the incident to Correctional Supervisor John Underwood on
the afternoon of the same day.
conducted
an
investigation
Corrections Officer Sargent Prater
of
the
reported
incident.
After
completing his investigation, Sgt. Prater charged Monroe with
stealing or possession of stolen property valued at less than $100
in violation of Corrections Policies and Procedures (CPP), Category
IV-14.
On April 25, 1997, Monroe was given a copy of the
Disciplinary Report Form and he requested a hearing before the
prison Adjustment Committee.
The hearing was originally scheduled
for April 29th, but was postponed until May 6, 1997.
After conducting a hearing at which Monroe testified and
was assisted by an inmate legal aide, the three-member Adjustment
Committee found Monroe guilty of violating the prison regulations,
but it amended the charge to unauthorized transfer of money or
property.
The Adjustment Committee assessed several penalties
including forfeiture of 60 days good-time credits, revocation of a
prior suspended forfeiture of 60 days good-time credits (for a
total forfeiture of 120 days good-time credits), and a restriction
of canteen privileges for a period of 60 days.1
On May 12, 1997,
Monroe filed an appeal of the disciplinary action to the prison
Warden alleging the prison authorities had violated CPP 15.6 by not
holding the disciplinary hearing within a seven-day period as
1
The Adjustment Committee noted on the hearing form that
this was the fifth incident report involving Monroe since
December 1996.
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prescribed by the prison policies and procedures. On May 29, 1997,
the
acting
warden
rejected
the
appeal
finding
there
was
no
violation of due process or CPP 15.6.
In July 1997, Monroe filed a Petition for Declaration of
Rights under KRS 418.040 alleging a violation of due process under
the 14th Amendment of the United States Constitution and Section 11
of the Kentucky Constitution.
Monroe again claimed that the
Adjustment Committee failed to hold the hearing within a seven-day
period or provide written justification for the delay as required
by CPP 15.6.
The Department of Corrections on behalf of the Warden
filed a response to the petition requesting dismissal of the
action.
The Corrections Department attached an affidavit from the
Chairman of the Adjustment Committee and the prison disciplinary
forms in support of its response.
On August 20, 1997, the circuit
court summarily dismissed the petition.
This appeal followed.
Monroe contends that the Adjustment Committee violated
his right to due process by not complying with the disciplinary
hearing procedures set out in the prison policies and procedures.
CPP 15.6(IV(D)(1) provides: “[T]he hearing shall be held within
seven (7) working days after the completion of investigation.
Any
delays beyond this time shall be justified and documented in
writing.”
1997,
was
Monroe contends that his disciplinary hearing on May 6,
held
investigation,
on
rather
the
than
eighth
the
working
seventh
day
day,
following
with
no
the
written
justification for the delay. He argues that strict compliance with
prison regulations is mandatory because CPP 15.6(IV)(D)(1) uses the
term “shall”.
-3-
In response, the Department of Corrections argues that
the Adjustment Committee complied with CPP 15.6(IV)(D)(1).
It
maintains that the disciplinary hearing in fact was held on the
seventh working day after completion of the investigation because
the time period did not start until April 26, 1997, the first full
working day following completion of the investigation.
On the
other hand, Monroe asserts that the seven working day period begins
on the day that the investigation was completed, so that the time
period accrued on April 25, 1997.
Monroe’s position is inconsistent with the statutorily
prescribed method for calculation of procedural time limitations.
KRS 446.030 provides in relevant part that:
(1)(a)
In computing any period of time prescribed or
allowed by order of court, or by any applicable statute
or regulation, the day of the act, event or default after
which the designated period of time begins to run is not
to be included.
The last day of the period so computed
is to be included, unless it is a Saturday, a Sunday, a
legal holiday, or a day on which the public office in
which a document is required to be filed is actually and
legally closed, in which event the period runs until the
end of the next day which is not one (1) of the days just
mentioned . . . .
(b)
When
a
statute,
regulation,
or
order
of
court
requires an act to be done either a certain time before
an event or a certain time before the day on which an
event occurs, the day of the event shall be excluded in
computing the time. If the day thereby computed on which
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or by which the act is required to be done falls on a
Saturday, Sunday, legal holiday, or a day on which the
public
office
in
which
the
act
is
required
to
be
completed is actually and legally closed, the act may be
done on the next day which is none of the days just
mentioned.
The
procedures
(Emphasis supplied.)
Department
constitute
of
regulations
196.035 and KRS 197.020.
deals
with
guidelines
prison
for
Corrections’
prison
promulgated
policies
pursuant
See also 501 KAR 6:020 et seq.
disciplinary
various
proceedings
phases
of
the
and
to
KRS
CPP 15.6
provides
process
and
time
involving
investigations, giving an inmate an opportunity to confer with a
legal aide and receive a copy of the charging documents at least
twenty-four hours prior to the hearing, and conducting the hearing.
CPP 15.6(IV)(D)(1) states that the disciplinary hearing shall be
held
within
seven
investigation.
working
days
after
completion
of
the
Under KRS 446.030, the day that the investigation
is completed is not counted toward the seven-day time period for
holding
a
hearing.
As
a
result,
the
prison
officials’
interpretation and application of CPP 15.6(IV)(D)(1) is consistent
with KRS 446.030.
In the case at bar, Monroe has failed to
establish a violation of CPP 15.6(IV(D)(1) because the disciplinary
hearing was held on the seventh working day following completion of
the investigation. Thus, the trial court did not err in dismissing
the petition for declaratory judgment.
For the foregoing reasons, we affirm the order of the
Morgan Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steve L. Monroe, Pro se
Greenup, Kentucky
No Appearance
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