MARK L. DYER v. KENTUCKY DEPARTMENT OF CORRECTIONS
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RENDERED: July 17, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
97-CA-0714-MR
MARK L. DYER
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 96-CI-000986
KENTUCKY DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
ABRAMSON, GARDNER, and GUIDUGLI, Judges.
ABRAMSON, JUDGE:
Mark L. Dyer (Dyer) appeals pro se from a
February 11, 1997 order of the Franklin Circuit Court dismissing
his petition for declaratory judgment brought pursuant to
Kentucky Revised Statute (KRS) 418.040.
After a review of the
record, the arguments of the parties, and the applicable law, we
affirm.
Dyer currently is an inmate at the Otter Creek
Correctional Center.
Between 1989 and 1996, Dyer participated in
several informational programs involving a variety of subjects.
Many of the programs were provided by either Department of
Corrections' employees or instructors approved by the Corrections
Department.
Many of these classes were conducted at the
Northpoint Training Center including an employability skills
course, a chemical awareness program, and an AIDS (Acquired
Immunodeficiency Syndrome) education course.
Dyer also received
numerous certificates of completion from the Northpoint Training
Center Jaycees for self-improvement classes, and he completed
correspondence courses involving computers and paralegal studies.
Finally, Dyer received credits from Ashland Community College and
Lindsey Wilson College for courses in computer sciences.
In June 1996, Dyer filed a request with Corrections
Department officials seeking 600 days of educational good time
credit for the classes and courses he attended while
incarcerated.
The request was initially denied by the prison
warden, so Dyer filed an administrative appeal to the Chief
Educational Program Administrator of the Department of
Corrections.
The Program Administrator concurred in the decision
denying Dyer educational good time credit, but he advised Dyer to
reapply for credits after receiving a two-year associate diploma
from Ashland Community College for his accredited college
courses.
On July 8, 1996, Dyer filed a motion for declaratory
judgment in the circuit court seeking a court order declaring his
right to receive educational good time credits pursuant to KRS
197.045 and Corrections Policies and Procedures (CPP) 20.1.
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The
Department of Corrections filed a response seeking dismissal of
the petition and included an affidavit from Wendell McCourt, the
Chief Educational Program Director.
Dyer responded and, on
February 11, 1997, the circuit court dismissed the petition for
declaratory judgment.
This appeal followed.
While the trial court merely dismissed the action, when
parties file exhibits and affidavits in support of their
position, as was done here, and these documents are not excluded
by the trial court, the circuit court order dismissing is to be
treated as a summary judgment.
App., 712 S.W.2d 351 (1986).
CR 12.03; Moss v. Robertson, Ky.
The standard of review for summary
judgment involves whether the trial court correctly found that
there is no genuine issue of material fact in dispute and that
the appellee was entitled to judgment as a matter of law.
Moss,
supra; Seigle v. Jasper, Ky. App., 867 S.W.2d 476 (1993).
A
party is not entitled to summary judgment unless it is shown with
such clarity that there is no room left for controversy, and it
appears impossible for the other party to produce evidence at
trial warranting a judgment in his favor.
Steelvest, Inc. v.
Scansteel Service Ctr., Ky., 807 S.W.2d 476 (1991).
In the
current action, the factual issues are not contested and only
issues of law involving statutory interpretation are in dispute.
Dyer argues that under KRS 197.045, he is entitled to
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receive educational good time credit for every course or class he
completed while incarcerated.
KRS 197.045(1)1 stated as follows:
(1) Any person convicted and sentenced to a
state penal institution may receive a credit
on his sentence of not exceeding ten (10)
days for each month served, except as
otherwise provided in this section, to be
determined by the department from the conduct
of the prisoner. In addition, the department
shall provide an educational good time credit
of sixty (60) days to any prisoner who
successfully receives a graduate equivalency
diploma, a two (2) or four (4) year college
degree, or a two (2) year or four (4) year
certification in applied sciences, or who
receives a technical education diploma as
provided and defined by the department;
prisoners may earn additional credit for each
program completed. The department may
forfeit any good time previously earned by
the prisoner, or deny the prisoner the right
to earn good time in any amount, if, during
the term of imprisonment, a prisoner commits
any offense or violates the rules of the
institution.
As part of the authority granted to the Department of
Corrections under KRS 196.035 and KRS 197.020 to issue
administrative regulations, it promulgated CPP 20.1 to establish
guidelines for educational programs and the granting of
educational good time credits pursuant to KRS 197.045.
CPP 20.1
sets out the requirements for participation by inmates in
programs involving adult basic education, technical education,
1
KRS 197.045 was
not effective until July
in effect in June 1996.
substantially affect the
amended in 1996, but the amendments were
15, 1996, so we will apply the version
In any event, the amendments would not
outcome of the case.
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college or university courses, a life management program, and
correspondence courses.
CPP 20.1(VI)(C) provides for educational
good time credit for completion of the authorized programs upon
recommendation to and final approval of the particular
institution's warden and the central office of the Corrections
Department.
Dyer argues that CPP 20.1 and KRS 197.045 created a
constitutional liberty interest under the 14th Amendment of the
United States Constitution, and Sections 2, 3 and 11 of the
Kentucky Constitution in the granting of educational good time
credit for "approved programs."
He refers to mandatory language
in KRS 197.045(1) indicating that "the department shall provide
an educational good time credit of sixty (60) days to any
prisoner . . . . who receives a technical education diploma as
provided and defined by the department . . . ."
Dyer contends
that any completed program, course or class authorized under CPP
20.1 constitutes a technical diploma subject to educational good
time credit.
We disagree.
A protected liberty interest generally may arise from
the Due Process Clause of the constitution and the laws of the
states.
Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454,
460, 109 S. Ct. 1904, 1908, 104 L. Ed. 2d 506 (1989).
Liberty
interests may also be created through state government policy
statements or regulations.
Bills v. Henderson, 631 F.2d 1287,
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1291 (6th Cir. 1990).
In Sandin v. Conner, 515 U.S. 472, 484,
115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 429-30 (1995), the
Supreme Court indicated that in order to establish a statecreated liberty interest, an inmate must demonstrate two factors:
1) the presence of state statutory or regulatory language
creating "specific substantive limitations," intended to
circumscribe the discretion of prison officials, Olim v.
Wakinekona, 461 U.S. 238, 249-50, 103 S. Ct. 1741, 1747-48, 75 L.
Ed. 2d 813 (1983), and 2) the imposition of "atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life."
See also Rimmer-Bey v. Brown, 62 F.3d
789, 790-91 (6th Cir. 1995)(inmate must prove existence of both
mandatory language in regulation and atypical and significant
hardship by statute or regulation).
In cases such as this, the
courts must analyze the "nature of the deprivation" for whether
an inmate has suffered a "grievous loss" of liberty that results
in atypical and significant hardship or that "will inevitably
affect the duration of his sentence."
Sandin, 515 U.S. at
,
115 S. Ct. at 2298-302, 132 L. Ed. 2d at 431.
In assessing whether Dyer has a constitutionally
protected liberty interest, we first must determine the "nature
of the deprivation."
It is well-established that a prisoner has
no constitutional right to participate in specific educational or
vocational programs.
See Garza v. Miller, 688 F.2d 480, 485 (7th
-6-
Cir. 1982), cert. denied, 459 U.S. 1150, 163 S. Ct. 796, 74 L.
Ed. 2d 1000 (1983);
Ky. 1985).
Archer v. Reno, 877 F.Supp. 372, 377 (E.D.
Although the award of educational good time credits
is based initially on the completion of education courses, the
deprivation involved in this case is the denial of earned good
time credits.
Good time credits serve as an incentive for
prisoners to act in a particular desired manner in return for a
commensurate reduction in the amount of time served in prison on
the original sentence.2
First, in Wolff v. McDonnell, 418 U.S.
554, 558, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974), the
Supreme Court held that state law may create a liberty interest
in good time credits because they shorten the prison sentence and
involve an interest of "real substance."
at 2975; see also Sandin, 515 U.S.
L. Ed. 2d at 430-431.
Id. at 557, 94 S. Ct.
, 115 S. Ct. at 2297, 132
Therefore, assuming Dyer had a right to
the educational good time credits, the failure of prison
officials to recognize and award him educational good time credit
satisfies the second prong of the Sandin requirements because
this will inevitably affect the duration of the sentence and
represents more than a mere opportunity to earn good time
credits.
2
In addition to educational good time, Kentucky law also
provides for basic statutory good time credit related to good
behavior and meritorious good time related to exceptionally
meritorious behavior. See KRS 197.045.
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The first prong of the Sandin requirements involves
whether state law sets out sufficient specific limitations on
prison officials that go beyond mere procedural guidelines.
This
analysis necessarily centers on the language of the state law for
"mandatory directives" that create a reasonable expectation that
a right or interest exists.
See Hewitt, 459 U.S. at 471-72, 103
S. Ct. at 871; Olim v. Wakinekona, 461 U.S. at 245-46, 103 S. Ct.
at 1745.
In Kentucky Dept. of Corrections v. Thompson, 490 U.S.
454, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989), the Supreme Court
clearly indicated that in addition to mandatory language, the
statute or regulation must contain language creating "substantive
predicates" with "particularized standards or criteria [to] guide
the state's decisionmakers."
Id. at 462, 109 S. Ct. at 1909
(quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458,
467, 101 S. Ct. 2460, 2465, 69 L. Ed. 2d 158 (1981)(Brennan, J.,
concurring)).
An analysis of KRS 197.045 and CPP 20.1 reveals that
these provisions do not create a federal due process liberty
interest in the award of educational good time credits for the
classes completed by Dyer.
While the statute arguably creates a
liberty interest for successful completion of a GED, a college
degree or a certification in applied sciences, KRS 197.045 allows
the Corrections Department to establish criteria for a technical
education diploma.
Moreover, CPP 20.1(IV) defines "Technical
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Education" as "a post secondary vocational education program as
set forth in 780 KAR 4:020."
Under 780 KAR 4:020, which sets
forth diploma requirements for vocational-technical education
programs, a student must meet the following requirements for a
diploma:
1) have earned a high school diploma or a GED;
the entry/exit requirements for the program;
program requirements;
2) meet
3) complete all
and 4) pass an occupational achievement
test (the Kentucky Vocational Achievement Test (KVAT) or an
approved nationally test).
Dyer has not shown that he has
satisfied the above requirements or received a technical
education diploma.
Although CPP 20.1 contains some mandatory
language, it contains no relevant mandatory language involving
substantive predicates limiting prison officials' discretion in
awarding educational good time credits for the type of courses
completed by Dyer.
As a result, even assuming he could satisfy
the second prong of the Sandin requirements, Dyer has failed to
satisfy the first prong, and thus has not established a protected
constitutional liberty interest in being awarded educational good
time credits.
Although Dyer refers to a constitutional liberty
interest in educational good time credits, his position is based
primarily on state statute and prison regulations.
While he may
have no federal constitutional right, Dyer's reliance on state
statute and administrative law raises the issue of whether he has
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a right to educational good time credits under state law.
Sandin, 515 U.S. at
Ed. 2d at 432.
See
n.11, 115 S. Ct. at 2302 n.11, 132 L.
However, Dyer has not shown a right to
educational good time credits even under state law.
Dyer argues that he is entitled to educational good
time credit for any completed class or course authorized by
prison officials.3
Dyer contends that KRS 197.045 requires the
Corrections Department to award educational good time credit for
all classes provided and defined by the department.
Dyer's
argument, however, is generated by artificially extracting
various phrases from the statute and regulations in order to
create an improper interpretation.
A review of the entire
statute and applicable regulations clearly establishes that not
all classes available to inmates qualify for educational good
time credits.
CPP 20.1 describes the official policy for two
separate and distinct programs, that being general education
classes and courses subject to educational good time credits.
Although related because both types involve educational issues,
neither the statute nor the prison regulations require the
3
Dyer cites to an unpublished circuit court opinion to
support his position. First, under CR 76.28(4)(c), unpublished
opinions shall not be cited or used as authority in any other
case in any court of this state. See also Goodlet v.
Commonwealth, Ky. App., 825 S.W.2d 290 (1992). Second, we are
not bound by a decision of a circuit court. Third, the
unpublished opinion does not support Dyer's argument because it
involves statutory language under a prior version of KRS 197.045
that has since been revised and does not apply to the current
case.
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Corrections Department to award educational good time credits for
every class or course an inmate completes.
Dyer attempts to fit
his classes within the "technical education" language of KRS
197.045, but they do not fall within the type of courses
classified as technical education under CPP 20.1.
In fact, the
majority of Dyer's classes fall within the general education type
courses defined in the prison regulations under "life management"
or "correspondence course."
"[I]n the construction and interpretation of
administrative regulations, the same rules apply that would be
applicable to statutory construction and interpretation."
Revenue Cabinet, Commonwealth v. Gaba, Ky. App., 885 S.W.2d 706,
708 (1994).
In addition, an agency's interpretation of a
regulation is valid if it complies with the actual language of
the regulation.
(1991).
Hagan v. Farris, Ky., 807 S.W.2d 488, 490
"In most cases, an agency's interpretation of its own
regulations is entitled to substantial deference."
Id.
Generally, "where there is no clearly established judicial
interpretation to the contrary, [courts] defer to prison
officials' interpretation and application of their rules to the
facts so long as that interpretation and application is not
objectively unreasonable."
Moorman v. Thalacker, 83 F.3d 970,
974 (8th Cir. 1996).
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In the case at bar, the Education Program Director
stated in an affidavit that educational good time credit is not
awarded for life management or individual correspondence courses.
The Corrections Department promulgated CPP 20.1 to set forth all
the educational programs for inmates and it was not intended to
describe an exclusive set of programs for educational good time
awards.
The Program Director stated that not all of the
described programs in CPP 20.1 are eligible for educational good
time.
Life management classes, life skills classes and
independent correspondence courses are not the type of classes
that are eligible for educational good time credit under the
statute.
The Education Program Director denied Dyer's request
for educational good time credit because his classes involved
life management or correspondence courses or did not result in a
two-year college degree.
The prison officials' interpretation
and application of the prison policies was reasonable.
The
prison officials did not violate state statutory or regulatory
law in denying Dyer's application for educational good time
credit.
Consequently, the Corrections Department was entitled to
summary judgment as a matter of law and the trial court did not
err in dismissing the motion for declaratory judgment.
For the foregoing reasons, we affirm the order of the
Franklin Circuit Court.
ALL CONCUR.
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BRIEF
FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark L. Dyer, Pro Se
Beattyville, Kentucky
John T. Damron
Department of Corrections
Frankfort, Kentucky
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