RENDERED: January 19, 2001; 10:00 a.m. NOT TO BE PUBLISHED
C ommonwealth O f K entucky C ourt O f A ppeals
JOSEPH R. DUNLAP
APPEAL FROM MORGAN CIRCUIT COURT HONORABLE SAMUEL C. LONG, JUDGE CIVIL ACTION NO. 00-CI-00021
GEORGE MILLION, JOHN UNDERWOOD, RICHARD FULKS and BARBARA CONLEY
OPINION AFFIRMING ** ** ** ** ** BEFORE: DYCHE, HUDDLESTON and KNOPF, Judges. Joseph Dunlap appeals from a Morgan Circuit
Court order dismissing his petition for a declaration of rights brought pursuant to Kentucky Revised Statutes (KRS) 418.040. In September 1999, Dunlap was an inmate at the Eastern Kentucky Correctional Complex (EKCC). On September 13, 1999,
prison officials discovered 80 coupons from the Prison Industries Coupon Plant with a face value of $605.55 in a letter addressed to Cindy Mayberry in Sacremento, Kentucky, with a return address of David Braden, who was an inmate at EKCC. A preliminary
investigation revealed that the coupons were stolen, that David
Braden worked in the coupon plant, and that Braden had no apparent ties to anyone at the location to which the letter was addressed. Upon further investigation, the investigator found that several telephone calls had been made by an inmate identifying himself as “Joe” from the prison dorm where Dunlap was housed to the location to which the letter was addressed. A review of Dunlap’s prison
records indicated that Dunlap had some prior connections to the Sacramento area. Dunlap also shared a prison cell with Ralph
Philpott, who worked in the prison coupon plant. A review of the prison telephone logs indicated that on September daughter. 13, 1999, Dunlap made two telephone calls to his
In the first call he said to her that she should forget In the second call
about what he had been telling her about "D".
a few hours later he said that if "they call, tell them you don’t know what they’re talking about." Handwriting analysis indicated When interviewed,
that Philpott had sent the Mayberry letter.
Dunlap denied any knowledge of the coupons, but Philpott admitted having stolen the coupons. Philpott also stated that Dunlap was
not involved in the theft, but indicated that Dunlap’s daughter knew Mayberry and had introduced her to him. Based on the investigation, Dunlap and Philpott were charged with violating Corrections Policies and Procedure (CPP) 15.2(VI)(C), personal, Category or V-5, stealing or possession over of stolen The
investigator alleged that Dunlap and Philpott had conspired to steal the coupons and attempted to remove the stolen coupons from the prison.
On November 10, 1999, the Adjustment Committee conducted a hearing on the charge. violating the CPP based The Committee found Dunlap guilty of on the investigative report and the
telephone calls made to his daughter.1
It imposed a sanction of 60
days disciplinary segregation and forfeiture of 90 days good time credit. Upon appeal to the prison warden, he concurred with the
Adjustment Committee’s decision. On July 26, 2000, Dunlap filed a petition for declaration of rights pursuant to KRS 418.040 and CR 57 challenging the disciplinary action based on the lack of sufficient evidence. On
March 9, 2000, the Department of Corrections, on behalf of the respondents, filed a response defending the Adjustment Committee’s actions and requesting dismissal of the petition. The Corrections
Department also attached to the response an affidavit from the prison warden, George Million, explaining the Committee’s action with reference to the telephone logs reviewed by the Committee, the investigation report, and the Committee’s hearing report. filed a reply to the response. Dunlap
On March 23, 2000, the circuit This appeal followed.
court summarily dismissed the petition.
While the trial court dismissed the action for failure to state an actual controversy, when parties file exhibits and
affidavits in support of their positions, as was done here, we treat the request for dismissal and the circuit court order
The Adjustment Committee listed as a third reason for its decision, "the fact that the coupons were being sent to inmate Dunlap’s daughter’s address." This is factually erroneous. The coupons were addressed to Cindy Mayberry, who is not Dunlap’s daughter but is a friend of his daughter. -3-
dismissing as a summary judgment.2
As the Court noted in Smith v.
O’Dea3, inmate declaratory judgment actions invoke the circuit court’s authority as a body reviewing administrative agency action. Under these circumstances, the Smith court recognized a modified standard for summary judgment. "[W]e believe summary judgment for the Corrections Department 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 Department is entitled to judgment as a matter of law."4 In Superintendent, Massachusetts Correctional
Institution, Walpole v. Hill,5 the United States Supreme Court set out the substantive quantum of evidence required to support a decision in a prison disciplinary proceeding. Given the deference
that necessarily applies to judicial review of prison disciplinary situations, the Court held that in situations involving prison disciplinary proceedings, due process requires a somewhat lesser standard of proof and that a disciplinary committee’s decision to
See Smith v. O’Dea, Ky. App., 939 S.W.2d 353, 355 n. 1 (1997); Ky. R. Civ. Proc. (CR) 12.02.
Supra, n. 2. Smith v. O’Dea, supra, n. 2. 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). -4-
impose sanctions for violations of prison rules must be supported by merely "some evidence in the record."6 In applying this modicum
of evidence, the Supreme Court indicated that courts should refrain from second-guessing the prison officials’ administrative decision. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is
whether there is any evidence in the record that could support the conclusion reached by the disciplinary board .... The fundamental fairness guaranteed by the Due
Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not
comparable to a criminal conviction, and neither the amount of evidence necessary to support such a
conviction, nor any other standard greater than some evidence applies to this context.7 The "some evidence" standard delineated in Superintendent v. Hill has been adopted as the appropriate standard under Section 2 of the Kentucky Constitution as well.8 In the current case, Dunlap argues that the disciplinary action violates due process because it is not supported by
Id. at 454, 105 S.Ct. at 2773.
Id. at 455-56, 105 S.Ct. at 2774 (citations omitted). See also Stanford v. Parker, Ky. App., 949 S.W.2d 616, 617 (1996).
Smith v. O’Dea, supra, n. 2. -5-
He contends that the evidence before the
Adjustment Committee did not satisfy the "some evidence" standard necessary to support the Committee’s decision. He asserts that
because there was no evidence directly linking his daughter to the alleged scheme to steal the coupons, the telephone calls by him to his daughter were irrelevant and immaterial. Dunlap also states
that there was no evidence conclusively showing that he was the person who identified himself as "Joe" on the telephone calls to Cindy Mayberry. In addition, he maintains that the telephone calls
to Mayberry in July were too remote in that they occurred several months prior to the September incident. He claims that the
investigation report contained conclusory allegations and that the evidence was unreliable because of the absence of explicit
indications that the telephone calls were related to the theft of the coupons. A review of the record supports Dunlap’s argument that there is no explicit, direct evidence placing him in possession of the stolen coupons. In addition, the telephone calls do not provide direct evidence showing his involvement with the attempted removal of the coupons from the prison. Nevertheless, the accumulation of
evidence taken as a whole does provide a link connecting him to the scheme to remove the stolen coupons from the prison. The connection between Dunlap’s daughter and Cindy Mayberry and the telephone calls to Mayberry from a person named "Joe" from the same cell block where he is housed provides circumstantial evidence linking Dunlap to the attempted recipient of the stolen coupons. The conversations
between Dunlap and his daughter on the afternoon and night that the
stolen coupons were uncovered were suspicious if not conclusive. It must be remembered that inmates are aware that their telephone conversations are recorded. Philpott’s statements exonerating
Dunlap are not determinative, and the Adjustment Committee is free to determine the credibility to be given to the statements of the witnesses. In conclusion, while the various pieces of evidence may
be attacked when taken in isolation, when viewed in its entirety, we believe the information considered by the Adjustment Committee provided a sufficient modicum of evidence to satisfy the "some evidence" standard of Hill. Dunlap also maintains that the prison officials violated CPP 15.6, which sets forth the procedures for disciplinary actions against inmates.9 was incorrectly He states that the date and time of the incident stated; no chain of custody existed for the
recordings of the telephone conversations between himself and his daughter; the actual recordings of the telephone conversations were not presented to the Adjustment Committee; the statement in the Adjustment Committee’s report that the letter containing the stolen coupons were addressed to his daughter was erroneous; and the Adjustment Committee failed to explain why it discounted Philpott’s statements exonerating Dunlap. First, several of Dunlap’s complaints with the procedures were never raised during the administrative proceeding, and
therefore were waived.10
The allegation concerning the date and
The Department of Corrections argument in its appellate brief.
See O’Dea v. Clark, Ky. App., 883 S.W.2d 888 (1994). -7-
time of the incident is incorrect in that the investigation report gives the date and time the stolen coupons were discovered in the letter addressed to Mayberry. The complaint concerning the
Adjustment Committee’s statement that the letter was addressed to Dunlap’s daughter is incorrect but does not render the disciplinary decision invalid. evidence rather The other complaints go to the weight of the than any significant procedural defect.
Accordingly, we do not find any of Dunlap’s complaints about violations of CPP 15.6 entitle him to a new hearing. Finally, Dunlap complains that the circuit court failed to allow him to conduct discovery and failed to make specific findings of fact. These complaints are without merit. It is well
established that a trial court is not required to make specific findings of fact and reach conclusions of law in ruling on a motion for summary judgment.11 In addition, Dunlap failed to request or Similarly,
make a motion requesting additional findings of fact.12
Dunlap filed a reply to the Correction Department’s response without mentioning a need to conduct further discovery. He has not shown
how he was denied the opportunity to conduct discovery prior to the circuit court’s order dismissing the petition.
See, e.g., Toyota Motor Manufacturing Co. v. Epperson, Ky., 945 S.W.2d 413 (1996); Allen v. Martin, Ky. App., 735 S.W.2d 332 (1987); Wilson v. Southward Inv. Co. #1, Ky. App., 675 S.W.2d 10 (1984); CR 52.01. See CR 52.04; Eiland v. Ferrell, Ky., 937 S.W.2d 713 (1997); Abuzant v. Shelter Ins. Co., Ky. App., 977 S.W.2d 259 (1998). -812
For the foregoing reasons, we affirm the Morgan Circuit Court order dismissing Dunlap’s petition for a declaration of rights. ALL CONCUR. BRIEF FOR APPELLANT: Joseph Dunlap, pro se Burgin, Kentucky BRIEF FOR APPELLEE: John T. Damron Justice Cabinet Department of Corrections Frankfort, Kentucky