DUNCAN (WILLIAM) VS. ROBERTS (ROCKY), ET AL.
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RENDERED: NOVEMBER 13, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002231-MR
WILLIAM DUNCAN
v.
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE C.A. WOODALL, III, JUDGE
ACTION NO. 08-CI-00107
ROCKY ROBERTS; CHAD KNIGHT;
HARLAN MARTIN; DANIEL CARTER;
AND THOMAS SIMPSON
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: William Duncan brings this pro se appeal from a November
10, 2008, order of the Lyon Circuit court dismissing his petition for declaration of
rights. We affirm.
Appellant was an inmate at Kentucky State Penitentiary in September
2007. Via a prison security camera, appellant was observed receiving a package
from Correctional Officer Timothy Short. Thereupon, appellant was escorted by
Correction Officer Brad Driver to the yard office for a strip search. Appellant then
pulled a package from his shirt and threw the package to another inmate, Michael
Craig. Officer Driver recovered the package. However, appellant lunged at
Officer Driver thereby striking him in the arm. Subsequently, the contents of the
package proved to be 2.94 ounces of marijuana.
Ultimately, a prison adjustment committee found appellant guilty of
possession of promoting dangerous contraband and penalized him with disciplinary
segregation as punishment. Also, a prison adjustment committee found appellant
guilty of physical action against a prison employee and penalized him 180 days in
disciplinary segregation and one-year forfeiture of nonrestorable good-time credit.
Appellant filed a petition for declaration of rights in the Lyon Circuit
Court. Therein, appellant argued that his constitutional due process rights were
violated and sought restoration of his good-time credit and monetary damages
against various prison employees. By order entered November 10, 2008, the
circuit court denied appellant relief and dismissed his petition. This appeal
follows.
Appellant raises some seven allegations of error:
I.
The trial court erred, to appellant’s substantial
prejudice when it failed to grant relief on
appellant’s claim that the prison disciplinary
board’s refusal to call Internal Affairs Investigator
Ray, Officer Cooper, and Lieutenant Shaw as
witnesses at the prison disciplinary hearing.
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II.
The trial court erred, to appellant’s substantial
prejudice when it failed to grant relief on
appellant’s claim that the prison disciplinary
board’s refusal to call Internal Affairs Investigator
Ray, Officer Cooper, and Lieutenant Shaw as
witnesses at the prison disciplinary hearing.
III.
The trial court erred, to appellant’s substantial
prejudice when it failed to grant relief on
appellant’s claim that the reliability of the field test
had not been established prior to the use of the
field test results as evidence of guilt.
IV.
The trial court erred, to appellant’s substantial
prejudice when it failed to grant relief on
appellant’s claim that the undocumented State
Police lab test results referenced at the hearing
could not be used to support a decision of guilty.
V.
The trial court erred, to appellant’s substantial
prejudice when it failed to grant relief on
appellant’s claim that the veracity of Sergeant
Driver and Lieutenant Shaw was so lacking [that]
their testimony could not be used to support a
decision of guilt.
VI.
The trial court erred, to appellant’s substantial
prejudice when it failed to grant relief on
appellant’s claim that the prison disciplinary board
retaliated against him.
VII. The trial court erred, to appellant’s substantial
prejudice when it failed to grant relief on
appellant’s claim that the written findings of the
prison disciplinary board did not meet minimum
due process standards.
Appellant’s Brief at ii – iv.
It is well settled that a defendant is not entitled to the “full panoply” of
due process rights in a prison disciplinary proceeding. Wolff v. McDonnell, 418
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U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974). Rather, a defendant
is merely entitled to the following minimum procedural requirements:
(a) [W]ritten notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him; (c)
opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to
confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not
allowing confrontation); (e) a ‘neutral and detached’
hearing body such as a traditional parole board, members
of which need not be judicial officers or lawyers; and (f)
a written statement by the factfinders as to the evidence
relied on and reasons for revoking parole.
Wolff, 418 U.S. at 559, 945 S. Ct. at 2976 (quoting Morrissey v. Brewer, 408 U.S.
471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484 (1972)). Moreover, the prison
adjustment committee’s decision will be upheld upon judicial review if supported
by “some evidence.” Webb v. Sharp, 223 S.W.3d 113 (Ky. 2007).
Having reviewed the record and having considered appellant’s
allegations of error, we conclude that appellant was afforded the minimum due
process procedural requirements and that some evidence supports the committee’s
decision. In particular, we adopt the circuit court’s sound analysis as our holding:
First, KRS [Kentucky Revised Statutes] 454.405 denies
[appellant] compensation in the present case. “No inmate
may maintain a civil action for monetary damages in any
state court for mental or emotional injury without a prior
showing of physical injury.” See KRS 454.405(5). The
record shows that [appellant] did not suffer any physical
injury during this period.
Second, [appellant] fails to allege any facts
demonstrating a due process violation. Under Sandlin v.
Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d
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418 (1995), a confinement to disciplinary segregation
must present an “atypical, significant deprivation” that is
substantially and fundamentally different than typical
conditions of incarceration before an interest implicating
the due process rights is at stake. Not every “state action
taken for punitive reason encroaches upon a liberty
interest under the Due Process Clause. . . .” Also see
Marksberry v. Chandler, 126 S.W.3d 747 (Ky. App.
2004).
The United States Constitution does not make an
inmate’s freedom from segregation a protected liberty
interest. Montanye v. Haynes, 427 U.S. 236, 242 (1976).
A prisoner’s placement in administrative segregation
does not involve a liberty interest protected by the Due
Process clause. Hewitt v. Helms, 459 U.S. 460, 468, 74
L. Ed. 675, 103 S. Ct. 864 (1983). [Appellant] fails to
demonstrate that his segregation assignment constitutes a
liberty interest to which constitutional due process
protections apply.
Third, in prison disciplinary matters, the Circuit
Court is a Court of review only. Smith v. O’Dea, 839
S.W.2d 353 (Ky. App. 1997). The Court will review the
record to determine whether some evidence supports the
disciplinary finding and whether the prisoner received
notice of the charges, a reasonable opportunity to be
heard, and a brief written explanation of the Adjustment
Committee’s decision. The Court will not view the
evidence of [appellant’s] alleged infraction de novo, but
rather will only review the record as an appeal to
determine whether “some evidence” exists to support the
Adjustment Committee’s decision. See Webb v. Sharp,
223 S.W.3d 113 (Ky. 2007).
It is not the Circuit Court’s prerogative to
substitute its judgment for that of the Adjustment
Committee where there is some evidence to support the
decision. Prison officials are afforded broad discretion.
Yates v. Fletcher, 120 S.W.3d 728, 731 (Ky. App. 2003).
Fourth, the Respondents [Rocky Roberts,
Chairman KSP Adjustment Committee, et al.] complied
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with due process requirements in the prison disciplinary
context under Wolff v. McDonnell, 418 U.S. 539, 563567, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1994) and
Superintendent Mass. Correctional Institution, Walpole
v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d
356 (1985). As mentioned previously, the three prong
test of Wolff requires (1) advance written notice of the
disciplinary charges; (2) an opportunity, when consistent
with institutional safety and correctional goals, to call
witnesses and to present documentary evidence in
defense; and (3) a written statement by the factfinder of
the evidence relied upon and the reasons for disciplinary
actions. The record shows Respondents met the three
prong test of Wolff and provided due process to
[appellant].
In the present case, the only relevant questions are
whether [appellant’s] rights were violated by not being
allowed to question certain officers or to view the video
of the incident. As noted by the Respondent, the KSP
[Kentucky State Penitentiary] adjustment committee
properly denied [appellant’s] attempt to confront the
reporting officer based on Correctional Policy and
Procedure 15.6(D)(2)(g)(2) while remaining consistent
with the principles of Wolff. In fact, Correctional Policy
and Procedure 15.6 goes beyond these principles. The
Supreme Court in Wolff did not require a committee to
state a reason for refusing to allow access to a witness.
Wolff at 566. Correctional Policy and Procedure 15.6
requires justification, in writing, on an institutional
report.
It should be noted, the Supreme Court in the often
mentioned Wolff stated at page 566-567:
The operation of a correctional institution is
at best an extraordinarily difficult
undertaking. Many prison officials, on the
spot and with the responsibility for the
safety of inmates and staff, are reluctant to
extend the unqualified right to call
witnesses; and in our view, they must have
the necessary discretion without being
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subject to unduly crippling constitutional
impediments.
The record reflects that the Kentucky State
Penitentiary acted within its discretion while reaching the
some evidence standard.
In sum, we are of the opinion that the circuit court properly denied
appellant’s relief and dismissed his petition for declaratory relief.
For the foregoing reasons, the order of the Lyon Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
William Duncan, Pro Se
Eddyville, Kentucky
Angela E. Cordery
Frankfort, Kentucky
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