JAMES ROSS v. DOUG SAPP, COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS; GEORGE MILLION, WARDEN, EASTERN KENTUCKY CORRECTIONAL COMPLEX; DON BATTLES, DEPUTY WARDEN, EASTERN KENTUCKY CORRECTIONAL COMPLEX; AND VICKI SMITH, UNIT COORDINATOR, EASTERN KENTUCKY CORRECTIONAL COMPLEX
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RENDERED: SEPTEMBER 29, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000850-MR
JAMES ROSS
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 98-CI-01521
v.
DOUG SAPP, COMMISSIONER,
KENTUCKY DEPARTMENT OF CORRECTIONS;
GEORGE MILLION, WARDEN, EASTERN KENTUCKY
CORRECTIONAL COMPLEX; DON BATTLES,
DEPUTY WARDEN, EASTERN KENTUCKY CORRECTIONAL
COMPLEX; AND VICKI SMITH, UNIT COORDINATOR,
EASTERN KENTUCKY CORRECTIONAL COMPLEX
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, EMBERTON AND GUIDUGLI, JUDGES.
BARBER, JUDGE:
This is an appeal by James Ross from an order of
the Franklin Circuit Court denying his petition for a declaratory
judgment that the appellees improperly denied him an opportunity
to be considered for a transfer from Eastern Kentucky
Correctional Complex to another penal institution.
At some point not disclosed in the record, Ross was
incarcerated as an inmate at the Eastern Kentucky Correctional
Complex (EKCC) in West Liberty, Kentucky.
According to Ross, on
June 6, 1998, while attending a scheduled reclassification
meeting, he requested a transfer to another Kentucky Department
of Corrections (DOC) institution pursuant to DOC Corrections
Policy and Procedures (CPP) policy 18.7, which applies to the
subject of transfers.
CPP 18.7(O) provides that “In general,
inmates shall be required to complete a six month placement at an
institution before transfer to another institution shall be
considered.”
Ross contends that he sought the transfer to be
closer to his family.
Ross was subsequently notified that,
pursuant to EKCC policy, before any request for transfer would be
considered, an inmate must remain incarcerated at EKCC for one
year and, in addition, must maintain one year clear conduct.
On July 15, 1998, Ross filed a prison grievance
contesting EKCC’s transfer request policy.
On July 20, 1998,
appellee Vicki Smith, Unit Coordinator, responded to Ross’s
grievance, stating that EKCC’s transfer request guidelines
concerning CPP 18.7(O) had been approved by the Department of
Corrections Central Office, and would be included in subsequent
revisions of the CPPs.
Ross appealed the grievance to the EKCC
Grievance Committee, then to EKCC Warden George Million, and
finally to DOC Commissioner Doug Sapp, all of which denied Ross’s
requested action on his grievance.
On December 15, 1998, Ross filed a petition for
declaratory judgment in the Franklin Circuit Court.
Revised Statutes (KRS) 418.040.
See Kentucky
The petition sought an order
directing the appellees to comply with CCP 18.7(O); a declaration
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that the EKCC policy requiring one year residency and one year
clear conduct was null, void, and unenforceable; and a
declaration that any prisoner housed at EKCC could, in the
future, be considered for transfer if he met the criteria of CPP
18.7(O).
On January 29, 1999, the appellees filed a motion to
dismiss.
On February 5, 1999, the trial court entered an order
denying Ross’s petition.
Ross thereafter filed a motion to
alter, amend, or vacate, which was denied by order entered March
12, 1999.
Ross then filed a motion for findings of fact and
conclusions of law, which was denied by order entered March 19,
1999.
This appeal followed.
Ross contends that the trial court erred in granting
the appellees’ motion to dismiss.
Summary dismissal of an inmate
action against the Department of Corrections “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, administrators' 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.”
Smith v. O’Dea, Ky. App., 939 S.W.2d 353, 356 (1997).
“The court must be sensitive to the possibility of prison abuses
and not dismiss legitimate petitions merely because of unskilled
presentations.”
Cir. 1989)).
Id. (Citing Jackson v. Cain, 864 F.2d 1235 (5th
“However, it must also be free to respond
expeditiously to meritless petitions.” Id.
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There are no factual disputes in this case.
Consequently, the only issue is whether the appellees were
entitled to a judgment as a matter of law.
We review questions
of law de novo without deference to the interpretation afforded
by the circuit court. Cinelli v. Ward,
Ky. App., 997 S.W.2d 474,
476 (1998).
At issue in this case is the applicability and
significance of Department of Corrections Policy 18.7(O), which
provides, “In general, inmates shall be required to complete a
six month placement at an institution before transfer to another
institution shall be considered.”
In what Ross apparently
interprets as a contradiction of CPP 18.7(O), on January 23,
1997, Vicki Smith, Unit Coordinator at EKCC, issued a memo which
stated as follows:
As a matter of practice inmates will be
required to spend a minimum of one year at
this institution with one year clear conduct
before a transfer recommendation is made at
the inmate’s request. This requirement may
be waived by the Classification Committee if,
in their opinion, the inmate needs to be
moved to another institution. These
decisions will be made based on institutional
need and not to merely satisfy an inmate’s
desire to be housed elsewhere. The year/year
requirement does not apply for transfers to a
lower custody institution or for those
inmates accepted into a program not offered
here.
Inmates who meet the requirements are not
guaranteed a transfer. The Classification
Committee will decide if the inmates request
should be honored.
Ross alleges that by extending the six month placement
requirement of CPP 18.7(O) and creating a one year clear conduct
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requirement before an inmate will be considered for transfer, the
appellees have violated KRS Chapter 13A and KRS 196.035, and
therefore have violated his right to due process.
We disagree.
Prison officials have discretion in the management of
prisons and the placement of prisoners.
See e.g., KRS 197.065.
An inmate has no constitutional right to be housed in a
particular institution, and an inmate may be transferred for any
reason, or no reason at all.
Meachum v. Fano, 427 U.S. 215, 96
S. Ct. 2532, 49 L. Ed.2d 451; reh'g denied, 429 U.S. 873, 97
S.Ct. 191, 50 L.Ed.2d 155
(1976); Olim v. Wakinekona, 461 U.S.
238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983); Sandin v. Conner,
515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995); Beard v.
Livesay, 798 F.2d 874 (6th Cir. 1986); Archer v. Reno, 877
F.Supp. 372 (ED Ky 1995).
The Kentucky Department of Corrections
Policies and Procedure do not create a liberty interest giving an
inmate a right to a particular security classification or to be
housed in a particular prison facility.
938 S.W.2d 575 (1997).
Mahoney v. Carter, Ky.,
Although inmates do not lose all their
constitutional rights upon consignment to prison, the United
States Supreme Court has repeatedly acknowledged the broad
discretion afforded prison administrators to maintain order and
security within their institutions.
See Wolff v. McDonnell, 418
U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
It has also
warned courts against too readily inferring inmate rights from
regulations designed to provide guidance to prison personnel and
to maintain institutional consistency and flexibility.
Connor, 515 U.S. 472, 115
Sandin v.
S. Ct. 2293, 132 L. Ed. 2d 418 (1995).
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In Meachum v. Fano, 427 US at 224 - 225, 96 S.Ct. at
2538, the United States Supreme Court addressed this issue as
follows:
The initial decision to assign the convict to
a particular institution is not subject to
audit under the Due Process Clause, although
the degree of confinement in one prison may
be quite different from that in another. The
conviction has sufficiently extinguished the
defendant's liberty interest to empower the
State to confine him in any of its prisons.
Neither, in our view, does the Due Process
Clause in and of itself protect a duly
convicted prisoner against transfer from one
institution to another within the state
prison system. Confinement in any of the
State's institutions is within the normal
limits or range of custody which the
conviction has authorized the State to
impose. That life in one prison is much more
disagreeable than in another does not in
itself signify that a Fourteenth Amendment
liberty interest is implicated when a
prisoner is transferred to the institution
with the more severe rules.
Ross does not contest the fact that EKCC adopted its
transfer policy with the approval of the Department of
Corrections and that the only reason that its policy is not
reflected in the written Corrections Policies and Procedures is
because a revised version of the polies has yet to be issued
which would reflect the new policy.
Moreover, CPP 18.7(O) does
not, as contended by Ross, clearly establish that he is entitled
to consideration of a transfer request after six months.
Again,
the policy states, “In general, inmates shall be required to
complete a six month placement at an institution before transfer
to another institution shall be considered.”
First, the policy
speaks to transfers “in general” and hence we discern no
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prohibition as to an individual institution being permitted to
adopt more specific policies to address more specific situations.
Further, we interpret the policy as imposing, if anything, a
minimum time period below which an institution may not go before
considering a transfer, rather than a ceiling prohibiting an
institution from requiring a longer placement prior to
considering a transfer.
Ross has no Due Process Clause right to a transfer, and
CPP 18.7(O) does not impose the restrictions upon EKCC as alleged
by Ross in his complaint.
Contrary to Ross’ contention, EKCC’s
policy was not contrary to the administrative law restrictions of
KRS Chapter 13A and KRS 196.035.
There was no due process
violation associated with the adoption of the EKCC transfer
policy.
Ross also argues that there was a due process violation
in that there was a liberty interest associated with CPP 18.7(O).
While, again, we disagree with Ross’ interpretation of the
restrictions CPP 18.7(O) placed upon EKCC, we note that
The types of interests that constitute
"liberty" and "property" for Fourteenth
Amendment purposes are not unlimited; the
interest must rise to more than "an abstract
need or desire," Board of Regents v. Roth,
408 U.S. [564], at 577, 92 S.Ct. [2701] at
2709, [33 L.Ed.2d 548], and must be based on
more than "a unilateral hope," Connecticut
Board of Pardons v. Dumschat, 452 U. S. 458,
465, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158
(1981). Rather, an individual claiming a
protected interest must have a legitimate
claim of entitlement to it. Protected
liberty interests "may arise from two sources
-- the Due Process Clause itself and the laws
of the States." Hewitt v. Helms, 459 U.S.
[460] at 466, 103 S.Ct. [864] at 868, [74
L.Ed.2d 675] (1983).
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Belcher v. Kentucky Parole Board, Ky. App., 917 S.W.2d 584, 585586 (1996) (quoting Kentucky Department of Corrections v.
Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d
506 (1989)).
As previously noted, Ross has no due process right to
be placed in any particular prison, and hence no liberty interest
in such placement.
State laws or regulations create liberty
interests when they place "substantive limitations on official
discretion.”
Kentucky Department of Corrections, 490 U.S. at
462, 109 S.Ct. at 1909.
“Such limitations exist where:
(1) the
law or regulation establishes "substantive predicates" to guide
the state's decision makers; and (2) mandatory language is used
to ensure that, if the substantive predicates are present, a
prescribed result will necessarily follow.”
Belcher at 586
(citations omitted).
CPP 18.07(O) is not couched in mandatory language, and
the administrative law statutes Ross has cited us to do not
persuade us that EKCC acted improperly in adopting its present
transfer request policy.
Upon the whole, we view appellant's
allegation as unsupported by the facts and by the law.
As such,
we are of the opinion that the circuit court did not commit
reversible error in denying appellant's motion for declaratory
judgment.
For the foregoing reasons, the order of the circuit
court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James Ross, Pro Se
West Liberty, Kentucky
Tamela Biggs
Department of Corrections
Frankfort, Kentucky
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