GREGORY CHAPA v. C.O. TABOR
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RENDERED:
AUGUST 20, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002091-MR
GREGORY CHAPA
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 03-CI-00115
v.
C.O. TABOR
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, Chief Judge; BUCKINGHAM and TACKETT, Judges.
COMBS, CHIEF JUDGE.
Gregory Chapa, acting pro se, appeals from
an order of the Lyon Circuit Court of July 29, 2003, which
dismissed his petition for a declaration of rights brought
pursuant to KRS1 418.040.
We affirm.
Chapa is an inmate at the Kentucky State Penitentiary
(KSP) in Eddyville.
According to a disciplinary report, KSP
Correctional Officer Steven Tabor witnessed Chapa attempting to
throw a burning piece of rolled paper (otherwise known as a
1
Kentucky Revised Statutes.
“wick”) from his cell.
extinguished it.
Officer Tabor grabbed the wick and
An initial investigation revealed that Chapa
denied throwing anything from his cell and claimed that Officer
Tabor “got the wrong cell.”
Contradictory testimony in the
later investigative report provided various and conflicting
accounts of the incident.
On December 15, 2002, Chapa was charged with a
violation of 501 KAR2 6:020, CPP3 15.2, Category VI, Item 3 -deliberately causing a fire.
He pleaded not guilty.
He did not
waive twenty-four hour notice of the Adjustment Committee
hearing, his presence at the hearing, or the right to be heard
by the Adjustment Committee.
Although he did not indicate the
names of witnesses that he wished to call, he was also assigned
a legal aide inmate.
Hearings were held on December 23, 2002,
and on January 8, 2003, and the record indicates that no oral
testimony was requested.
On January 8, 2003, the Adjustment Committee reached a
determination of guilt, finding as follows:
We find Mr. Chapel (sic) guitly (sic) based
on facts stated by Officer Tabor that Chapel
(sic) had the wick in the door track and
threw it out on walk when Officer Tabor bent
down to pick it up.
2
Kentucky Administrative Regulation.
3
Corrections Policy and Procedure.
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The Committee sentenced Chapa to ninety-days’ disciplinary
segregation and re-imposed a punishment which previously had
been suspended of fifteen-days’ disciplinary segregation.
The
two terms were to run consecutively for a total of 105 days.
Chapa appealed the Committee’s decision to the warden,
arguing that because inmate Crawford’s statement contradicted
the report of Officer Tabor, Tabor’s statement was perforce
false.
On January 14, 2003, the warden affirmed the decision of
the Adjustment Committee.
On June 10, 2003, Chapa filed a petition for
declaration of rights alleging that the Adjustment Committee had
violated his right to due process.
He named as parties Officer
Tabor, Investigator Parker, all members of the Adjustment
Committee, and the warden.
Chapa alleged five violations of due process:
1) the
failure of Officer Tabor to state or to verify facts in the
disciplinary report as required by the CPP; 2) the failure of
the report to be investigated in accordance with the CPP; 3) the
failure of the Adjustment Committee to properly consider an
inmate statement that so contradicted Officer Tabor’s statement
as to invalidate it; 4) the denial of Chapa’s request to
question Officer Tabor and the failure of the Adjustment
Committee to follow the CPP in not providing a written reason
for denial of this request; and 5) the failure of the warden to
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dismiss the charges based on the enumerated procedural errors.
Chapa sought expungement of the report, conviction and sentence;
punitive and compensatory damages; trial by jury; and an
evidentiary hearing.
On July 23, 2003, the Department of Corrections filed
its response, denying that Chapa’s allegations rose to the level
of a due-process violation.
On July 29, 2003, the circuit court
dismissed the action, finding that due process had not been
implicated by the imposition of solitary confinement for the
period stated and that the punishment was not an atypical
hardship for a maximum security inmate.
The court also found
that the petition was factually frivolous and without merit,
characterizing the filing as form of harassment.4
This appeal
followed.5
On appeal, Chapa raises seven allegations of error.
He contends that:
1) the “some evidence” standard of review is
unfair when the underlying evidence relied upon is false; 2) the
4
During this time period, Chapa filed several motions. A Motion to Compel
Discovery was filed July 28, 2003, requesting an answer to his Request for
Admissions. Although Chapa indicates in this motion that he filed the
Request for Admissions on June 13, 2003, Officer Tabor’s Motion for
Protective Order, filed August 4, 2003, indicates that no such request was
ever received. We note that the record does not contain a copy of this
Request for Admissions. On August 4, 2003, several days after entry of the
Order of Dismissal, Chapa also filed a Motion to Amend Relief Requested, a
Notice to the Court concerning his Request for Admissions, a Motion for
Findings of Fact and Conclusions of Law Pursuant to CR 52.01, and a Counter
Response to Respondent’s Response on Petition for Declaration of Rights.
5
Chapa’s petition for declaration of rights named C.O. Tabor, Sgt. Parker,
Sgt. Beaver, U.A. Fletcher, Warden Haeberlin, and Lt. Lane as Respondents.
Chapa named only C.O. Tabor in his Notice of Appeal even though Chapa styled
the Notice of Appeal “Gregory Chapa v. C.O. Tabor et. al.”
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charge was not properly investigated in accordance with CPP
standards; 3) Officer Tabor’s failure to answer a request for
admissions deprived Chapa of an adequate opportunity to discover
evidence in support of his case; 4) a penalty of disciplinary
segregation amounts to a loss of a liberty interest that is on a
par with a loss of good time; 5) disciplinary segregation
amounts to an atypical and significant hardship causing
potential collateral consequences (e.g., as to parole
eligibility); 6) the circuit court did not properly consider
Chapa’s arguments because of its bias arising from a complaint
filed against it by Chapa with the Judicial Conduct Commission;
and 7) the inability to call Officer Tabor as a witness at the
hearing.
The Department of Corrections (the real party in
interest) gave notice to this Court that it would not file a
brief in this matter and instead relied on the response that it
had filed in the circuit court.
An inmate alleging a due process violation bears the
burden of showing that some type of arbitrary governmental
action resulted in the deprivation of a protected liberty or
property interest.
1995).
Williams v. Bass, 63 F.3d 483 (6th Cir.
Chapa has failed to satisfy this burden.
Chapa’s first argument is not preserved for review.
In asserting a due process violation, he argues that the “some
evidence” standard cannot be substantiated by a false statement.
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He reasons that Officer Tabor’s statement must be false solely
because it was contradicted by an inmate witness.
Although he
attacks Tabor’s veracity and credibility on appeal, he failed to
bring this specific issue before the circuit court.6
The filing
of an inmate’s petition for a declaration of rights in a circuit
court casts that court in an appellate role of reviewing the
administrative action of the disciplinary committee.
O’Dea, Ky. App., 939 S.W.2d 353 (1997).
Smith v.
Failure to present an
issue to the circuit court in the petition fails to preserve the
issue for our review on subsequent appeal.
Marksberry v.
Chandler, Ky. App., 126 S.W.3d 747, 753-754 (2004); Goben v.
Parker, Ky. App., 88 S.W.3d 432, 433 (2002).
Even if we were to review this unpreserved allegation
of error, we would find it to be without merit.
The “some
evidence” standard was adequately met in this case.
In the
particular context of prison disciplinary hearings, the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution is satisfied when “some evidence” of record
supports the findings of guilt by a prison adjustment committee.
Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774,
86 L.Ed.2d 356, 365 (1985).
6
Chapa did make a
“Counter Response
Rights,” but this
entered its order
See also Smith, supra at 358.
markedly similar argument to the circuit court in his
to Respondent’s Response on Petition for Declaration of
argument was filed six days after the circuit court had
of dismissal.
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Chapa cites Morrison v. LeFeure, 592 F.Supp. 1052
(D.C.N.Y. 1984) in support of this argument.
However, in
Morrison, the inmate had no opportunity for a hearing prior to
implementation of the penalty and was deprived of any
opportunity to present evidence of blatant fabrication by the
correctional officers.
On the contrary, Chapa was afforded the
opportunity for a hearing and did in fact present evidence to
contradict that of the correctional officer.
While Officer
Tabor’s statement was disputed by Chapa, the Adjustment
Committee as sole evaluator of the evidence elected to believe
Tabor’s version of the incident.
Therefore, “some evidence”
exists in the record to support the committee’s decision.
We
find no denial of due process and no error as to this issue.
Chapa next contends that the charge was not properly
investigated in accordance with the standards of CPP.
However,
his argument on this point merely re-hashes the inmate testimony
contradicting Officer Tabor’s statement and again castigates the
committee for electing to believe one version of the facts over
another.
We do not agree that the committee’s findings were
insufficient solely because conflicting evidence was presented.
The committee acted properly within its discretion and issued
appropriate findings based upon “some evidence” as it was
entitled to do.
We find no error.
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Chapa’s third argument alleges a due process violation
because his Request for Admissions to Officer Tabor was not
answered.
However, this issue was not presented in a timely
fashion to the circuit court.
preserved for our review.
Therefore, it has not been
Goben, supra.
Parenthetically, we
note that a circuit court reviewing a prison disciplinary action
is only required to review the action that was taken.
No
additional pleadings are either required or permitted.
discovery may be conducted.
permitted.
No new
No findings of fact are even
O’Dea, supra, at 355.
We find no due process
violation in the properly circumscribed scope of review
undertaken by the circuit court.
Chapa’s next three arguments are also unpreserved.
raises claims that he did not allege in his petition:
He
1) that a
penalty of disciplinary segregation amounts to a loss of a
liberty interest in the same manner as loss of good time; 2)
that disciplinary segregation amounts to an atypical and
significant hardship causing potential collateral consequences
(again, as to parole eligibility); and 3) that the circuit court
did not properly consider Chapa’s arguments because of his
complaint before the Judicial Conduct Commission.
Regardless of the preservation problem (Goben, supra;
Marksberry, supra), the substance of each argument is lacking in
merit.
Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293,
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2300, 132 L.Ed.2d 418 (1995), holds that in challenging a
punishment, an inmate must establish that the condition “imposes
atypical and significant hardship on [him] in relation to the
ordinary incidents of prison life.”
Chapa has not alleged nor
demonstrated that the conditions which he experienced were more
onerous, harsh, or restrictive than those normally entailed in
disciplinary segregation.
Additionally, numerous cases have
failed to find “atypical and significant hardship” in periods
far exceeding the 105 days served by Chapa -- with harsher
conditions than those imposed under the CPP.
See, e.g., Griffin
v. Vaughn, 112 F.3d 703 (3rd Cir. 1997) (15 months in
administrative segregation); Smith v. Mensinger, 293 F.3d 641
(3d Cir. 2002) (7 months in disciplinary segregation); Beverati
v. Smith, 120 F.3d 500 (4th Cir. 1997) (6 months in
administrative segregation); Jones v. Baker, 155 F.3d 810 (6th
Cir. 1998) (30 months in investigative administrative
segregation).
See also Marksberry, supra.
As to the potentially harmful impact on parole
eligibility resulting from the disciplinary segregation, Chapa
has merely alluded to a “possibility.”
In addressing a similar
argument, the Sandin Court found no due process violation,
holding that “(t)he chance that a finding of misconduct will
alter the balance is simply too attenuated to invoke the
procedural guarantees of the Due Process Clause.”
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Id., 515 U.S.
at 487, 115 S.Ct. at 2302.
His argument of potential bias as to
his official complaint about the circuit court is equally
speculative and attenuated.
Therefore, we find no error.
Finally, Chapa asserts a due process violation based
on his inability to cross-examine Officer Tabor at the
Adjustment Committee hearing.
claim.
However, the record refutes this
Chapa asserts that he made a request to cross-examine
Officer Tabor twenty-four hours before the hearing.
The
Disciplinary Report Form, Part II – Hearing/Appeal, reflects
that no oral testimony was requested.
This document was signed
by Chapa’s legal aide with a notation that Chapa was unable to
sign due to restraints.
Pursuant to CPP 15.6 C.5.b., failure to
identify witnesses not less than twenty-four hours prior to the
initial hearing constitutes a waiver.
Therefore, this claim has
no merit.
The order of the Lyon Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory Chapa, pro se
Eddyville, Kentucky
No Brief filed
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