JACK R. VIGUE v. LIEUTENANT JOHN UNDERWOOD
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RENDERED:
FEBRUARY 6, 2004; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000830-MR
JACK R. VIGUE
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 03-CI-00071
v.
LIEUTENANT JOHN UNDERWOOD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, JOHNSON AND MINTON, JUDGES.
JOHNSON, JUDGE:
Jack R. Vigue, pro se, has appealed from an
order entered by the Morgan Circuit Court on April 9, 2003,
which dismissed his petition for declaration of rights filed
pursuant to KRS1 418.040.
Having concluded that the trial court
did not err in dismissing Vigue’s petition for declaration of
rights, we affirm.
1
Kentucky Revised Statutes.
Vigue is an inmate at the Eastern Kentucky
Correctional Complex (EKCC) in West Liberty, Kentucky.
Vigue
was transferred to the Kentucky Department of Corrections from
Virginia pursuant to the Interstate Corrections Compact (ICC).2
On April 6, 2002, Vigue cut his finger on a can while working in
the kitchen at the EKCC.3
Shortly thereafter, Vigue’s co-
workers, Keith Durrett and Michael Kidwell, informed him that he
was bleeding.
According to Durrett and Kidwell, Vigue continued
working over their protests.
Consequently, four cases of corn
and five cases of lima beans were discarded due to contamination
concerns.
Vigue was subsequently fired from his job in the
kitchen and charged with “creating or causing a health hazard.”
A disciplinary hearing was held on April 10, 2002, at
which time the Adjustment Hearing Officer amended the charge
against Vigue to the lesser offense of “improper use of or
possession of state equipment or material.”4
Vigue was found
2
The ICC, which is codified at KRS 196.610, was adopted by Kentucky in 1970
to “provide for the mutual development and execution of [ ] programs of
cooperation for the confinement, treatment and rehabilitation of offenders
with the most economical use of human and material resources.” In sum, the
ICC is an agreement between Kentucky and several other states which provides
for the exchange and housing of prisoners on a reciprocal basis.
3
Vigue was preparing canned vegetables for the evening meal when he was
injured.
4
Pursuant to Kentucky Corrections Policies and Procedures (CPP) 15.6, “any
violation of a Category III or higher offense” is considered a major
violation and “any violation of a Category I or II offense” is considered a
minor violation. Creating or causing a health hazard is a Category VI
offense, whereas the improper use of or possession of state equipment or
material is a Category I offense.
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guilty of this charge and ordered to pay $170.16 as restitution
for the vegetables that were discarded.
On May 2, 2002, the
prison warden concurred with the hearing officer’s decision.
On March 19, 2003, Vigue filed a petition for
declaration of rights pursuant to KRS 418.040.
Vigue contended,
inter alia, that his due process rights were violated when the
correctional authorities failed to comply with the ICC.5
More
specifically, Vigue claimed the hearing officer applied Kentucky
disciplinary rules to his disciplinary hearing rather than
Virginia disciplinary rules in violation of the ICC.
On April
4, 2003, the Department of Corrections filed a motion to dismiss
Vigue’s petition for declaration of rights and on April 9, 2003,
the trial court entered an order dismissing Vigue’s petition.
The order states, in relevant part, as follows:
IT IS HEREBY ORDERED that [ ]
Petitioner has failed to demonstrate any due
process violations. The recognized elements
of procedural and substantive due process
were present in the institutional
disciplinary proceedings at issue.
Petitioner is not entitled to have the laws
of the Commonwealth of Virginia apply to a
disciplinary hearing held in the
Commonwealth of Kentucky under the language
of either the Interstate Corrections Compact
or the implementing contract [citations
omitted].6
5
Vigue also contended that there was insufficient evidence to support his
conviction.
6
On April 4, 2003, the Department of Corrections filed a motion with the
trial court requesting permission to file a copy, under seal, of the
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This appeal followed.
Vigue argues on appeal that he has a protected liberty
interest in having Virginia disciplinary rules applied to him
while he is incarcerated in Kentucky pursuant to the ICC.7
We
cannot agree.
We begin our analysis by setting forth the proper
standard of review.
Since the trial court apparently considered
matters outside of the pleadings, i.e., the implementing
contract used by Kentucky and other states for facilitating the
transfer of inmates under the ICC, in arriving at its decision
to dismiss Vigue’s petition for declaration of rights, we must
treat the ruling as a summary judgment.8
The standard of review
governing an appeal of a summary judgment entered in this
Commonwealth is well-settled.
We must determine whether the
implementing contract used by Kentucky and other states for transfers of
inmates made under the ICC. The motion was granted on April 9, 2003.
7
Vigue’s pro se appellate brief is rather convoluted and his arguments are
difficult to discern. Nevertheless, a thorough review of the record
indicates that Vigue is attempting to raise a due process argument based on
the ICC. Interestingly, however, Vigue expressly disavows any reliance on
the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. He contends that “[t]he merits of [his] case rest solely on
the fact that state law was violated[.]” Vigue also appears to argue that
the Kentucky Department of Corrections lacked the authority under the ICC to
enter a “final determination” with respect to his disciplinary proceedings.
8
See, e.g., Pearce v. Courier-Journal & Louisville Times Co., Ky.App., 683
S.W.2d 633, 635 (1985). See also 6 Philipps, Kentucky Practice, CR 12.02,
cmt. 9 (5th ed. 1995). “On a motion to dismiss on this ground the Rule
recognizes that matters outside the pleadings may be presented by affidavit
or otherwise. It is within the discretion of the court whether or not this
extraneous matter shall be considered, but if the court does not exclude it,
the motion shall be treated as one for summary judgment under Rule 56.” Id.
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trial court erred in concluding that there was no genuine issue
as to any material fact and that the moving party was entitled
to a judgment as a matter of law.9
Summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.”10
In Paintsville Hospital
Company v. Rose,11 the Supreme Court of Kentucky held that for
summary judgment to be proper the movant must show that the
adverse party cannot prevail under any circumstances.
The
Supreme Court has also stated that "the proper function of
summary judgment is to terminate litigation when, as a matter of
law, it appears that it would be impossible for the respondent
to produce evidence at the trial warranting a judgment in his
favor.”12
A protected liberty interest may arise from two
sources--the Due Process Clause itself and state law or
9
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
10
Kentucky Rules of Civil Procedure (CR) 56.03.
11
Ky., 683 S.W.2d 255, 256 (1985).
12
Steelvest Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480
(1991).
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regulations.13
The liberty interest asserted by Vigue in the
case sub judice, i.e., the right to have Virginia disciplinary
rules applied to him while he is incarcerated in Kentucky, is
based on his interpretation of the ICC.
In sum, Vigue contends
that the ICC created a liberty interest to which he is entitled
by mandating that the sending state’s disciplinary rules apply
to proceedings involving a transferred inmate.
The thrust of
Vigue’s argument centers on two provisions contained in the ICC.
Specifically, Vigue cites Article IV(e) of the ICC which
provides, inter alia, that “[t]he fact of confinement in a
receiving state shall not deprive any inmate so confined of any
legal rights which said inmate would have had if confined in an
appropriate institution of the sending state.”14
In addition,
Vigue cites Article IV(f) of the ICC which provides:
Any hearing or hearings to which an
inmate confined pursuant to this compact may
be entitled by the laws of the sending state
may be had before the appropriate
authorities of the sending state, or of the
receiving state if authorized by the sending
state. . . . In the event such hearing or
hearings are had before officials of the
receiving state, the governing law shall be
that of the sending state and a record of
the hearing or hearings as prescribed by the
sending state shall be made. . . . In any
and all proceedings had pursuant to the
13
Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460, 109
S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989); and Bills v. Henderson, 631 F.2d
1287, 1291 (6th Cir. 1980).
14
See KRS 196.610.
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provisions of this subdivision, the
officials of the receiving state shall act
solely as agents of the sending state and no
final determination shall be made in any
matter except by the appropriate officials
of the sending state.
Vigue asserts that pursuant to the above-quoted provisions the
Kentucky Department of Corrections was required to apply
Virginia prison disciplinary rules to his disciplinary hearing.15
We cannot agree.
Article IV(e) of the ICC also provides:
All inmates who may be confined in an
institution pursuant to the provisions of
this compact shall be treated in a
reasonable and humane manner and shall be
treated equally with such similar inmates of
the receiving state as may be confined in
the same institution [emphasis added].
Moreover, the implementing contract used by Kentucky and other
states for transfers of inmates made under the ICC provides that
the receiving state shall “supervise” and “maintain proper
discipline and control” over the transferred inmates.
Specifically, paragraph 16 of the implementing contract states
that “[t]he receiving state, as agent for the sending state,
shall have the physical control over and power to exercise
disciplinary authority over all inmates from sending states.”
In addition, paragraph 17 of the contract provides that while in
the custody of the receiving state transferred inmates “shall be
15
As previously discussed, Vigue also contends that the Kentucky Department
of Corrections lacked the authority to enter a “final determination” with
respect to his disciplinary proceedings.
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subject to all the provisions of law and regulations applicable
to persons committed for violations of law of the receiving
state not inconsistent with the sentence imposed.”
While this issue is one of first impression in
Kentucky, several other jurisdictions have dealt with similar
challenges under the ICC.
When faced with an almost identical
factual scenario, the United States Court of Appeals for the
Eighth Circuit in Stewart v. McManus,16 declined to read into the
ICC or the implementing contract a requirement that Kansas’
disciplinary rules be applied to an inmate subject to
disciplinary proceedings while confined in an Iowa penitentiary.
The Stewart Court set forth its reasoning as follows:
Although the Compact provides that the
sending state has a right to conduct
hearings in the receiving state and apply
its law in situations when the inmate may be
entitled to hearings by the law of its
state, the Compact and the contract provide
that inmates are to be “treated equally,”
and that disciplinary authority shall be
exercised by the receiving state. . . . We
are satisfied that neither the statutory nor
contractual provisions mandate that [the
sending state’s] disciplinary rules and
regulations be applied to [the inmate’s]
disciplinary proceedings [conducted] in the
receiving state’s] penitentiary [emphases
original].17
16
924 F.2d 138 (8th Cir. 1991).
17
Id. at 141. See also Jaben v. Moore, 788 F.Supp. 500, 503-04 (D.Kan. 1992)
(rejecting claim that ICC required application of sending state’s custodyclassification guidelines); Cranford v. State, 471 N.W.2d 904, 905
(Iowa.Ct.App. 1991) (holding that ICC did not require application of sending
state’s disciplinary rules); Glick v. Holden, 889 P.2d 1389, 1393
(Utah.Ct.App. 1995) (denying prisoner’s claim that he was entitled to benefit
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We are persuaded that this reasoning is applicable in
the case sub judice.
As stated by the Utah Court of Appeals in
Glick, supra:
The following policy concerns [ ]
mandate the conclusion that [the receiving
state] should not be required to apply each
sending state’s policies and procedures
under the ICC. The purpose of the ICC is to
develop and execute “programs of cooperation for the confinement, treatment and
rehabilitation of offenders with the most
economical use of human and material
resources.” To achieve this purpose, the
ICC must facilitate inmate transfers, not
create obstacles to them. Requiring [a
receiving state] to learn and apply policies
and procedures of every state from which
[it] has received an inmate under the ICC
would create administrative burdens that
would likely lessen [a receiving state’s]
desire to accept inmates from other states.
This would create obstacles to interstate
transfer, thus thwarting the ICC’s purpose
[citation omitted].18
Based on the foregoing reasons, the order of the
Morgan Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jack R. Vigue, Pro Se
West Liberty, Kentucky
No brief filed.
of policies and procedure of sending state); and Daye v. State, 769 A.2d 630,
636 (Vt. 2000) (holding that Vermont inmates were not entitled, under the
ICC, to the same visitation policy in out-of-state correctional facilities
that applied in Vermont facilities).
18
Glick, 889 P.2d at 1394, n.6.
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