HENRY BROKAW v. GEORGE MILLION and KENTUCKY DEPARTMENT of CORRECTIONS
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RENDERED: August 1, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-002521-MR
HENRY BROKAW
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
CIVIL ACTION NO. 02-CI-00165
v.
GEORGE MILLION and
KENTUCKY DEPARTMENT of CORRECTIONS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
PAISLEY and TACKETT, Judges; HUDDLESTON, Senior Judge.1
HUDDLESTON, Senior Judge:
Henry Brokaw appeals from a Morgan
Circuit Court order dismissing his petition for a declaratory
judgment.
Brokaw argued in the petition that he was denied due
process of law when a prison disciplinary committee “unlawfully
1
Senior Judge Joseph R. Huddleston sitting as Special Judge
by assignment of the Chief Justice pursuant to Section 110(5)(b)
of the Kentucky Constitution and Ky. Rev. Stat. (KRS) 21.580.
extended”
his
period
of
imprisonment
based
on
scientifically
unreliable evidence the results of a Duquenois-Levine Reagent
test.2
Brokaw
is
Correctional Complex.
an
inmate
at
the
Eastern
Kentucky
On December 20, 1999, Brokaw was charged
with “possession or promoting of dangerous contraband” after a
2
Chemically the Duquenois test is the principal test for
tetrahydrocannabinol, the hallucinogenic constituent of
marijuana. The test procedure involves the application of
Duquenois’ reagent to an extract of the sample, or directly
to the sample . . . if the treated reagent is placed with
chloroform and the purple coloration is absorbed into the
chloroform, most chemists can state with certainty that
marijuana is present. People v. Escalera, 143 Misc.2d 779,
783, 541 N.Y.S.2d 707, 709 (N.Y. Crim. Ct. 1989)(citation
omitted).
Allegedly, the principal shortcoming of the test as
modified for field use is that it can give “false negatives.”
Id., 143 Misc.2d at 783, 541 N.Y.W.2d at 710.
According
to
Brokaw,
this
test
“was
abandoned
or
dis[re]garded by the Drug Enforcement Agency (DEA) due to its
unreliability” as documented in “Michael Smitha v. Michael
O’Day, Morgan Circuit Court, Civil Action No. 94-CI-00032,” and,
therefore, both the Department of Corrections and Million were
placed on notice regarding its unreliability.
As observed by
Million, the case to which Brokaw was presumably referring is
Contrary to
Smith v. O’Dea, Ky. App., 939 S.W.2d 353 (1997).
Brokaw’s assertion, however, Smith, does not stand for the
proposition that Duquenois-Levine test results do not constitute
sufficient evidence to support the decision of a prison
disciplinary committee.
In that case, we held that “the ‘some
evidence’ standard of review provides courts with a sufficient
check upon adjustment committee fact-finding.” Id. at 358.
2
search of his prison cell led to the discovery of thirteen small
bags of marijuana.3
On
Brokaw admitted owning the bags in question.
January
4,
2000,
the
EKCC
adjustment
committee
conducted a hearing on the matter at which Brokaw pled guilty to
possession of dangerous contraband.
Based on Brokaw’s plea and
the facts as set forth in the disciplinary report form, the
committee found him guilty as charged, assigned him to ninety
days’ disciplinary segregation and ordered the forfeiture of 180
days of “good time.”
to
the
warden
(Million)
January 20, 2000.
due
process
acknowledged
Brokaw appealed4 the committee’s decision
who
concurred
with
the
committee
on
In denying Brokaw’s appeal, Million found “no
violations”
ownership
of
and
emphasized
the
marijuana
that
both
Brokaw
initially
had
and
during the investigation.
3
As attested to by the reporting officer on the disciplinary
report form, a Duquenois-Levine Reagent test was performed in
front of both Brokaw and his cellmate with a fellow officer
acting as a witness.
The test, performed on one of the
confiscated bags, was positive for marijuana.
4
As the sole basis for his appeal, Brokaw argued that the
committee “erred and abused its discretion when it arbitrarily
found [Brokaw] guilty of said charges violating his due process
rights.”
In so doing, he emphasized that the disciplinary
report did not identify the person doing the testing of the
marijuana, but did reveal that there was more than one officer
involved in the incident. Thus, the “committee assumed that C/O
Havens #489 did the testing without any evidence stating this
fact” in violation of CPP 9.8, V.E.2.b. which mandates that
items considered contraband “shall be hand delivered by the
employee confiscating such property . . . .”
3
On July 5, 2002, more than two years after the denial
of his appeal to Million, Brokaw initiated the instant action
against Million and the Department of Corrections.
In response,
Million argued that Brokaw’s cause of action had to be filed
within
one
year
413.140(1)(a)
pursuant
and,
to
Kentucky
therefore,
was
Revised
Statutes
time-barred.
(KRS)
In
the
alternative, Million contended that Brokaw waived his right to
challenge
beyond
the
that,
committee’s
Brokaw
decision
“received
due
by
pleading
process,
guilty
although
he
and,
was
deprived of no protected interest.”
Apparently in anticipation of the instant litigation,
Brokaw sought to have his appeal to Million reconsidered.
memorandum
dated
May
8,
2002,
Million
denied
“reconsideration appeal,” concluding as follows:
a
timely
appeal
reviewed.
within
the
appropriate
In a
Brokaw’s
“You submitted
timeframe
and
it
was
Your due process rights were protected and you have
provided no new information, which would alter my decision.”5
On
September
19,
petition
for
argument
regarding
Reagent
test.
2002,
the
declaratory
the
Brokaw
circuit
judgment,
reliability
now
appeals
5
court
denied
implicitly
of
from
the
the
Brokaw’s
rejecting
his
Duquenois-Levine
denial
of
his
As correctly observed by Million, the Kentucky Corrections
Policies and Procedures do not provide for multiple appeals from
disciplinary decisions. See Policy Number 15.6.
4
petition for declaratory relief, echoing the arguments he made
below.
We begin by clarifying the nature of the proceedings
below.
An “appeal” to the circuit court from any agency or
tribunal other than the district court is an original action and
not
an
“appeal.”6
Although
technically
original
actions,
however, inmate petitions closely resemble appeals.7
Such an
action invokes the circuit court’s authority to act as a court
of review.8
with
due
“The court seeks not to form its own judgment, but,
deference,
to
ensure
that
the
agency’s
judgment
comports with the legal restrictions applicable to it.”9
“the
need
for
independent
judicial
factfinding
is
Thus,
greatly
reduced” and is required “only if the administrative record does
not permit meaningful review.”10
decision
of
a
prison
Our function in reviewing the
disciplinary
committee
is
to
determine
whether “some evidence” of record supports its findings.11
However,
a
guilty
plea
at
the
institutional
level
serves as a waiver of the right to challenge the outcome of a
6
Sarver v. County of Allen, Ky., 582 S.W.2d 40, 43 (1979).
7
Smith, supra, n. 2, at 355.
8
Id.
9
Id. (citation omitted).
10
Id. at 356.
11
Id.
5
prison disciplinary proceeding in circuit court.12
case
here.
dangerous
By
pleading
contraband
guilty
at
his
to
the
hearing
charge
before
Such is the
of
possessing
the
adjustment
committee, Brokaw waived his right to challenge its decision in
the circuit court.
Therefore, we do not reach the merits of his
petition.
Given our resolution of the waiver issue, further
discussion
regarding
the
timeliness
of
Brokaw’s
declaratory
judgment motion is unnecessary.
Brokaw did not raise the sole issue on appeal, whether
the Duquenois-Levine Reagent test is sufficiently reliable for
the
results
to
constitute
“some
evidence”
in
support
of
the
committee’s decision, before the adjustment committee or in his
initial
appeal
before
an
to
Million.
administrative
“The
body
failure
[the
to
raise
adjustment
an
issue
committee]
precludes a litigant [Brokaw] from asserting that issue in an
action
for
judicial
review
Accordingly,
had
Brokaw
decision
the
committee
of
not
of
waived
by
the
his
pleading
action.”13
agency’s
right
guilty,
to
appeal
we
would
the
be
precluded from addressing his argument on the merits on that
basis.
12
O’Dea v. Clark, Ky. App., 883 S.W.2d 888, 891 (1994).
13
Id. at 892.
6
The
order
denying
Brokaw’s
petition
for
declaratory
judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Henry Brokaw, pro se
West Liberty, Kentucky
Rebecca Baylous
Department of Corrections
Frankfort, Kentucky
7
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