MUHAMMAD THABIT RASHAD v. GEORGE R. MILLION; RICHARD FULK; BARBARA CONLEY; and DONALD FANNIN
Annotate this Case
Download PDF
RENDERED: JULY 14, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
NO.
NO.
1999-CA-001432-MR
1999-CA-001434-MR
1999-CA-001435-MR
1999-CA-001436-MR
MUHAMMAD THABIT RASHAD
v.
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
CIVIL ACTION NOS. 99-CI-00045, 99-CI-00046,
99-CI-00048 AND 99-CI-00050
GEORGE R. MILLION;
RICHARD FULK;
BARBARA CONLEY; and
DONALD FANNIN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and SCHRODER, Judges.
HUDDLESTON, Judge:
Muhammad Thabit Rashad appeals from Morgan
Circuit Court orders dismissing declaratory judgment actions that
he filed pursuant to Kentucky Revised Statute (KRS) 418.040.
These
consolidated
appeals
address
disciplinary
proceedings filed against Rashad while he was a prisoner at the
Eastern Kentucky Correctional Complex (EKCC).
On November 13,
1998, Rashad verbally threatened to assault prison personnel.
He
was charged with a Category IV, Item 8 violation of Corrections
Policy and Procedure (CPP) — a “Nonviolent Demonstration That Could
Lead To A Disruption Of Institutional Operations.”
On November 24, the EKCC Adjustment Committee found
Rashad guilty of an amended charge of Category IV, Item 19,
violation
of
the
CPP
—
making
threatening
statements.
The
committee imposed a penalty of 45 days of disciplinary segregation
and 180-day restriction on canteen privileges.
timely
appeal
with
the
committee’s decision.
warden,
and
the
Rashad filed a
warden
affirmed
the
Rashad then filed a declaratory judgment
action, Civil Action No. 99-CI-00045, to challenge the committee’s
decision, alleging that the committee violated his due process
rights.
The circuit court dismissed the complaint.
The other actions are based on prison proceedings for
Rashad’s
illegal
possession
obstruction of an air vent.
of
tobacco
(two
instances)
and
During a search of Rashad on November
13, prison staff discovered that Rashad was concealing tobacco on
his person in violation of Category IV, Item 5 of the CPP —
Smuggling Contraband.
The next day, prison staff again discovered
tobacco on Rashad’s person, and prison officials charged him with
a second Category IV, Item 5 violation.
On November 14, prison officials also charged Rashad with
a Category V, Item 2 violation of the CPP — Tampering With Life
Safety Equipment.
Rashad allegedly obstructed an air vent by
placing a piece of paper over the vent.
-2-
On November 24, the EKCC Adjustment Committee heard the
three charges and found Rashad guilty.
The committee imposed the
penalty of 45 days of disciplinary segregation, loss of 60 days of
statutory good time, and 180 days of restricted phone use for each
tobacco offense, with the penalties to run consecutively.
For the
tampering charge, the committee imposed a sanction of 60 days of
disciplinary segregation and 30 days of lost statutory good time.
Rashad filed declaratory judgment actions challenging the
sanctions imposed for each of the three charges.
He alleged that:
(1) the committee was not impartial; (2) the warden denied him the
right to appeal; (3) the committee imposed excessive and arbitrary
penalties; and (4) the committee failed to consider exculpatory
evidence.
The circuit court dismissed the actions.
This appeal
followed.
First, Rashad asserts that George Million, the warden,
violated his due process rights in denying Rashad’s appeals from
the EKCC Adjustment Committee’s decisions. Rashad raises other due
process claims.
In Wolff v. McDonnell1, the United States Supreme Court
said that:
[T]he fact that prisoners retain rights under the Due
Process Clause in no way implies that these rights are
not subject to restrictions imposed by the nature of the
regime
1
to
which
they
have
been
lawfully
committed.
418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
-3-
Prison
disciplinary
proceedings
are
not
part
of
a
criminal prosecution, and the full panoply of rights due
a defendant in such proceedings does not apply.2
The due process rights in a disciplinary proceeding include:
(1) advance written notice of the disciplinary charges;
(2) an opportunity, when consistent with institutional
safety and correctional goals, to call witnesses and
present documentary evidence in his defense; and (3) a
written statement by the factfinder of the evidence
relied on and the reasons for the disciplinary action.3
From the record, it is clear that the EKCC Adjustment Committee
gave Rashad notice of the proceedings, allowed him to present
evidence, and rendered written decisions based on the evidence.
The committee imposed penalties and punishment within the zone of
discretion proscribed by Corrections Policies and Procedures.
Rashad
takes
issue
with
the
classification of tobacco as contraband.
Corrections
Cabinet’s
Even though employees of
the prison may be able to use tobacco products, as he notes, it is
not unreasonable for the Corrections Cabinet to classify tobacco as
contraband in maintaining order in a prison.
While incarcerated,
2
Id. at 556, 94 S. Ct. at 2975, 41 L. Ed. 2d at 951
(internal citations omitted). See also Standford v. Parker, Ky.
App., 949 S.W.2d 616, 617 (1996) (quoting Wolff); Smith v. O’Dea,
Ky. App., 939 S.W.2d 353, 357 (citing Wolff).
3
Superintendent v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768,
2773, 86 L. Ed. 2d 356, 364 (1985) (citing Wolff, 418 U.S. at 56367, 94 S. Ct. at 2978-80, 41 L. Ed. 2d at 955-57).
-4-
prisoners give up rights that they enjoyed previously.
the
responsibility
of
the
courts
to
second
guess
It is not
reasonable
policies designed to control prisoner behavior in a correctional
facility.4
Rashad also claims that the air vent was covered when he
first occupied his cell.
In essence, he is contending that the
committee’s decision was contrary to the evidence presented and he
alleges that the committee was biased.
Whether the vent was
previously covered is a factual question to be resolved by the
committee.
The committee chose to believe the prison staff’s
evidence over Richard’s testimony, and that evidence supports the
committee’s findings.
We find no error.
Rashad avers that the warden violated his due process
right to appeal the tobacco and obstructed air vent charges.
Rashad’s due process rights do not include an appeal.
However,
because the Corrections Cabinet has created a mechanism for filing
an appeal in CPP 15.6, Rashad is entitled to take an appeal if it
is taken in the proscribed manner.
As we noted in Belcher v.
Kentucky Parole Board,5 “[a prisoner] has a legitimate interest in
a decision rendered in conformity with the established procedures
4
See also Sandin v. Conner, 515 U.S. 472, 482, 115 S. Ct.
2293, 2299, 132 L. Ed. 2d 418, 429 (1995) (“[F]ederal courts ought
to afford appropriate deference and flexibility to state officials
trying to manage a volatile environment.”) (citations omitted).
5
Ky. App., 917 S.W.2d 584 (1996).
-5-
and policies . . . .”6
If Rashad timely filed an appeal with the
warden, he was entitled to have the appeal considered on its
merits.
There is a factual dispute over whether Rashad took
timely appeals or filed appeals at all.
resolved by the warden.
Factual disputes must be
The warden determined that Rashad did not
file appeals or that the appeals were not timely.
The evidence on
which Rashad relies is a document entitled “Memorandum in Support
of Disciplinary Hearing on 11-24-98,” which is an appeal from the
life safety equipment violation.
indicia of filing.
The face of the document has no
The warden found that Rashad had filed no
appeal for three of the violations.
These findings are not
contrary to the evidence.
Rashad’s second argument is that the EKCC Adjustment
Committee applied the incorrect standard of proof in determining
whether he had committed the charged acts.
He claims that the
correct standard is “a preponderance of the evidence.”
In reviewing disciplinary proceedings, the U.S. Supreme
Court has held that “the requirements of due process are satisfied
if some evidence supports the decision by the prison disciplinary
board . . . .”7
To resolve the question, the reviewing court must
determine “whether there is any evidence in the record that could
6
Id. at 587.
7
Superintendent v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768,
2774, 86 L. Ed. 2d 356, 365 (1985). See also Smith, supra, n. 2,
at 356 (discussing Hill).
-6-
support the conclusion reached by the disciplinary board.”8
If a
decision is supported by some evidence, we must not disturb the
decision on review.9
In this case, prison officials found tobacco on Rashad’s
person on two occasions.
On the charge of obstructing the air
vent, Rashad failed to note that the vent in his cell was covered
when he moved in.
In light of this evidence for each of the
charges, we believe that the committee’s decisions were supported
by some evidence. Thus, we conclude that the committee applied the
correct standard of proof and committed no reversible errors. Even
if the correct standard was a preponderance of evidence, the
committee could still have found Rashad guilty of the charged acts
in light of the evidence presented.
The orders dismissing Rashad’s complaints are affirmed.
ALL CONCUR.
8
Hill, 472 U.S. at 455-56, 105 S. Ct. at 2774, 86 L. Ed. 2d
at
365
(citing
United
States
ex
rel.
Vajtauer
v.
Commissioner of Immigration, 273 U.S. 103, 106, 47 S. Ct. 302, 304,
71 L. Ed. 560, ___ (1927); Willis v. Ciccone, 506 F.2d 1011, 1018
(8th Cir. 1974)).
9
Smith, supra, n. 2, at 357 (“[I]n light of the exceptional
difficulties
confronting
prison
administrators,
a
highly
deferential standard of judicial review is constitutionally
appropriate with respect to both the factfinding that underlies
prison disciplinary decisions and the construction of prison
regulations.”) (summarizing the holdings Hill and Sandin).
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES IN 1999-CA001434-MR, 1999-CA-001435-MR,
AND 1999-CA-001436-MR:
Muhammad Thabit Rashad, pro se
Eddyville, Kentucky
Rebecca Baylous
OFFICE OF GENERAL COUNSEL
DEPARTMENT OF CORRECTIONS
Frankfort, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
