KURT JACKSON v. LT. LARRY VOIROL
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RENDERED: DECEMBER 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-001219-MR
KURT JACKSON
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
CIVIL ACTION NO. 01-CI-00747
v.
LT. LARRY VOIROL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Kurt Jackson appeals the dismissal for failure
to state a claim for which relief may be granted1 of his action
filed
under
the
Declaratory
Judgment
Act.2
Specifically,
he
alleged that the disciplinary action taken against him by the
corrections staff of Luther Luckett Correctional Complex (LLCC)
violated his due process rights.3
1
See Ky. R. Civ. P. (CR) 12.02(f).
2
Ky. Rev. Stat. (KRS) 418.040.
3
The circuit court should have treated Voirol’s motion to
dismiss as a motion for summary judgment under CR 56, in that its
(continued...)
Jackson was charged with an assault or physical action
against
an
employee
or
non-inmate,
as
well
as
pursuing
a
relationship unrelated to correctional activities with a noninmate.
The charges stemmed from an incident with a canteen
worker, wherein Jackson was alleged to have reached through the
canteen window and grabbed and rubbed the canteen worker’s hands.
Following a hearing, Jackson was found guilty of the
assault charge, while the lesser charge of pursuing a relationship
with a non-inmate was dismissed.
Based on this finding, Jackson
was sentenced to 180 days’ disciplinary segregation and lost 730
days of accumulated good-time credit.4
Jackson appealed the adjustment committee’s finding to
the LLCC warden, who affirmed the committee’s decision.
Jackson
then filed a declaratory judgment action in Oldham Circuit Court,
alleging that his treatment by corrections officials violated his
due process rights under the federal and Kentucky constitutions.
The circuit court’s decision against Jackson prompted this appeal.
Jackson’s argument is that it was improper for the
adjustment committee to rely on the testimony of the canteen worker
involved, citing several inconsistencies between her testimony at
3
(...continued)
decision was really a determination that no genuine issue of
material fact existed such that Voirol was entitled to judgment as
a matter of law. See Steelvest v. Scansteel Service Center, Inc.,
Ky., 807 S.W.2d 476 (1991). Jackson’s petition did state a claim
for which relief could be granted in a proper case; however, the
circuit court determined that this was not such a case. Therefore,
we will treat the decision as it should have been rendered, that
is, as a summary judgment.
4
We do not know if this is the standard punishment for
this type of incident or if Jackson was treated especially harshly
for some reason.
-2-
the hearing and statements she gave prior to the hearing.
His
argument is that because her testimony was inconsistent, it must be
disregarded, and that once her testimony is disregarded, there is
no evidence to support the committee’s decision.
The findings of fact of a prison disciplinary committe
must be supported by “some evidence.”5
The evidence relied upon to
punish a prison inmate must at least be reliable.6
In this case,
both Jackson’s testimony and that of the canteen worker changed
between the giving of their initial statements and their testimony
at the adjustment hearing.
The committee was thus called upon to
decide whose testimony was more credible, despite each having
changed position.
It is not our function as a reviewing court to
decide which testimony is to be believed and which disregarded;
that is uniquely the function of the prison adjustment committee.
In reaching its decision, the committee chose to believe the
canteen worker’s testimony and disregard Jackson’s, which it may
properly do.
It based its decision on her testimony, which
provided “some evidence” to support its ultimate conclusion.
Accordingly, the judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Kurt Jackson, pro se
LaGrange, Kentucky
5
Superintendent, Massachusetts Correctional Institution at
Walpole v. Hill, 472 U.S. 445, 105 S. Ct. 2768, 86 L. Ed. 2d 356
(1985).
6
Byerly v. Ashley, Ky. App., 825 S.W.2d 286, 288 (1991).
-3-
-4-
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