Amos v. Heimgartner

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NOT DESIGNATED FOR PUBLICATION

No. 113,954

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

VERNON J. AMOS,
Appellant,

v.

JAMES HEIMGARTNER,
Appellee.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed December 18, 2015.
Affirmed.

Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant.

Michael J. Smith, of Kansas Department of Corrections, of El Dorado, for appellee.

Before ATCHESON, P.J., GARDNER, J., and BURGESS, S.J.

Per Curiam: Inmate Vernon Amos received a disciplinary report due to his lewd
behavior. When it came time for his disciplinary hearing, he refused to participate. The
hearing officer found him guilty and assigned both a fine and 15 days of disciplinary
segregation. Amos appealed to the Secretary of Corrections (Secretary); and when the
Secretary upheld the hearing officer's decision, he filed a habeas corpus petition pursuant
to K.S.A. 2014 Supp. 60-1501. The district court summarily dismissed the petition, and
Amos appeals.


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FACTUAL AND PROCEDURAL BACKGROUND

One afternoon in July 2014, two corrections officers at the Hutchinson
Correctional Facility were supervising training officers when one noticed Amos staring at
them "while having his hands down his pants mast[u]rbating." One of the officers filed a
discipline report. When it came time for the disciplinary hearing, however, Amos refused
to participate. The hearing officer found that Amos required staff assistance and assigned
a staff member to assist in the hearing, which was held in absentia. According to the
hearing officer's notes, the officer who authored the discipline report testified, and the
hearing officer found Amos guilty of lewd acts in violation of K.A.R. 44-12-315.
Although the hearing record is difficult to read, the parties agree that Amos received a
sanction of 15 days' disciplinary segregation and a $15 fine.

Amos appealed to the Secretary, arguing that he received no notice of the hearing,
was denied the opportunity to call witnesses or participate, and was retaliated against by
the administrators of both the Hutchinson and El Dorado Correctional Facilities. The
Secretary approved the decision, finding that the hearing officer had substantially
complied with the applicable standards and procedures and that some evidence supported
the decision.

Dissatisfied by this result, Amos filed a petition for habeas corpus. He alleged that
the facility violated his due process rights by placing him in disciplinary segregation
because the combination of his mental health diagnoses and previous stints in disciplinary
segregation caused him psychological harm. He also claimed that the facility denied him
procedural due process in a number of ways, such as by failing to provide him notice and
denying him the opportunity to call witnesses.

The district court originally dismissed the petition as untimely, but after Amos
filed a motion for relief from judgment, the district court reinstated the case. However,
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the district court then dismissed the case on the merits, finding that disciplinary
segregation did not implicate any constitutional rights, some evidence supported the
violation, and Amos refused to participate in the disciplinary hearing.

Amos timely appealed.

ANALYSIS

Did some evidence support the disciplinary actions?

Amos argues that the disciplinary action was unsupported by the evidence.
Specifically, he argues that because he did not participate in the hearing and raised other
due process arguments in his petition, the evidence presented by the corrections officer at
the hearing was somehow insufficient.

As a general rule, a K.S.A. 2014 Supp. 60-1501 petition must allege "shocking
and intolerable conduct or continuing mistreatment of a constitutional stature" in order
for the petitioner to sustain his or her claim. Johnson v. State, 289 Kan. 642, 648, 215
P.3d 575 (2009). The district court may summarily dismiss the action "if, on the face of
the petition, it can be established that the petitioner is not entitled to relief." 289 Kan. at
648. The same is true when a review of the undisputed or incontrovertible facts (such as
those in the record) demonstrates that there exists no cause for granting the petition. 289
Kan. at 648-49; see K.S.A. 2014 Supp. 60-1503(a). An appellate court exercises
unlimited review of a summary dismissal. Johnson, 289 Kan. at 649.

When a prisoner in a disciplinary proceeding challenges the sufficiency of the
evidence, the decision will be upheld "if there was some evidence from which the
conclusion of the administrative tribunal could be made." Washington v. Roberts, 37 Kan.
App. 2d 237, 246, 152 P.3d 660 (2007). A reviewing court need not examine the whole
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record, assess witness credibility, or weigh the evidence; instead, it simply must decide
"whether there exists any evidence in the record to support the conclusion reached by the
disciplinary board." 37 Kan. App. 2d at 246. Under this standard, even "'meager'"
evidence can support the disciplinary board's findings provided that "'the record is not so
devoid of evidence that the findings . . . were without support or otherwise arbitrary.'"
Anderson v. McKune, 23 Kan. App. 2d 803, 808, 937 P.2d 16, rev. denied 262 Kan. 959,
cert. denied 522 U.S. 958 (1997).

In this case, the record is not devoid of evidence. It includes the disciplinary report
stating that the reporting officer witnessed Amos masturbating and the hearing officer's
report, which provides that the reporting officer reaffirmed the disciplinary report at the
hearing. Amos' lack of participation in the hearing does not detract from these facts.
Amos has failed to show the evidence was insufficient to support the disciplinary action
and, therefore, his appeal on this point must fail.

Did the district court err in finding no due process violations?

Next, Amos contends that the facility deprived him of a number of due process
rights. The issue of whether due process has been afforded is a question of law over
which this court exercises unlimited review. Hogue v. Bruce, 279 Kan. 848, 850, 113
P.3d 234 (2005). When, as here, an inmate raises an issue of procedural due process, this
court engages in a two-step analysis. First, the court must determine whether the State
deprived that inmate of life, liberty, or property. Only if those rights are implicated must
the court determine "the extent and nature of the process which is due. [Citation
omitted.]" 279 Kan. at 850-51.

Amos correctly points out—and the Secretary does not dispute—that fines
implicate the Due Process Clause. See Anderson, 23 Kan. App. 2d at 807. With that first
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prong of the analysis satisfied, the question becomes whether Amos received adequate
process under the law.

It is well-settled Kansas law that in disciplinary proceedings

"the full panoply of rights due a defendant in criminal proceedings do not apply. An
inmate's limited rights in a prison disciplinary proceeding include an impartial hearing, a
written notice of the charges to enable the inmate to prepare a defense, a written
statement of the hearing officer's findings as to the evidence and the reasons for the
decision, and an opportunity to call witnesses and present documentary evidence."
Washington, 37 Kan. App. 2d 237, Syl. ¶ 3.

As a preliminary note, Amos abandons a majority of his due process arguments on
appeal. Instead, he focuses on two major issues: (1) the hearing itself and (2) his
assignment to disciplinary segregation.

The hearing

Amos first argues that the facility violated his due process rights during the
hearing by denying him the opportunity to call and question witnesses and by providing a
staff assistant who failed to actually assist him. Although Amos characterizes his failure
to appear at the hearing as a denial of his rights, the record notes in multiple places that
Amos refused to participate. In fact, one document explains that he was not sworn in to
testify because of his refusal. Amos' implication that the facility purposely denied him the
opportunity to participate is unsupported by the record.

Turning to the issue of witnesses, our Kansas Administrative Regulations provide
that an inmate who wishes to call witnesses at a disciplinary hearing must fill out a form
requesting those witnesses within 48 hours of receiving the disciplinary report. The
inmate must also indicate what testimony each witness is expected to provide. K.A.R. 44-
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13-306. If the hearing officer or other prison official refuses to allow a witness to testify,
the official bears the burden of justifying that refusal. Washington, 37 Kan. App. 2d 237,
Syl. ¶¶ 5-6.

However, there is no indication that Amos ever requested witnesses. The
disciplinary report indicates that he received it on July 28, 2014, but no other
documentation predating the hearing exists. Moreover, Amos provides no information
either below or on appeal as to what information his allegedly rejected witnesses might
have provided. Given that Amos' petition needed to allege "shocking and intolerable
conduct or continuing mistreatment of a constitutional stature," it is clear that these vague
assertions about being denied a chance to call witnesses is insufficient to sustain a claim.
See Johnson, 289 Kan. at 648.

In his last argument concerning the hearing itself, Amos claims that his staff
assistant failed to actually assist him. In certain situations, a hearing officer must appoint
a facility staff member "to act as staff assistant to aid the inmate at the disciplinary
hearing and to question relevant witnesses." K.A.R. 44-13-408(a). Although the record is
unclear why exactly the hearing officer in this case appointed a staff assistant for Amos,
one of the situations requiring appointment of a staff assistant is when "[t]he inmate
either refuses to attend or has been removed from the hearing." K.A.R. 44-13-408(a)(5).

Regardless of the reason for the appointment, Amos contends that there is no
indication that his staff assistant either spoke to Amos or questioned the sole witness. The
record somewhat supports this contention. The hearing officer's notes are very brief and
do not disclose whether the staff assistant questioned the witness. While Amos raised
objections to his "substitute counsel" in his petition, he provided no facts to support this
allegation. Instead, he simply named the supposed failures by his "counsel" (presumably
meaning the staff assistant) as part of a 10-point list of due process violations. This brief
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mention certainly falls short of the shocking and intolerable conduct required to sustain a
K.S.A. 2014 Supp. 60-1501 petition. See Johnson, 289 Kan. at 648.

In short, nothing that occurred at the disciplinary hearing constitutes the type of
shocking and intolerable conduct that would entitle Amos to relief. The record indicates
that he refused to participate in the hearing and never requested witnesses testify on his
behalf. Because Amos' procedural due process rights were not violated, the district court
properly dismissed the petition on these grounds.

Mental health and administrative segregation

Amos next contends that his placement in disciplinary segregation rises to the
level of shocking and intolerable conduct because of his substantial mental health needs.
Specifically, he contends that when combined with his other stints in disciplinary
segregation, this penalty will cause him psychological harm. The State responds that
because Amos never raised this argument at the administrative level, he has failed to
exhaust his administrative remedies regarding this issue.

As a general rule, an inmate can only file a civil action against the Secretary after
exhausting his or her administrative remedies. K.S.A. 75-52,138. How this statute affects
individual issues rather than the petition as a whole is unclear. In Blanchette v. Werholtz,
No. 102,284, 2010 WL 198523, at *3 (Kan. App. 2010) (unpublished opinion), this court
held that an inmate's failure to raise an issue in his administrative appeal barred him from
raising it for the first time in his K.S.A. 60-1501 petition. In another case, Carter v.
Secretary of Corrections, No. 110,480, 2014 WL 1708110, at *2 (Kan. App. 2014)
(unpublished opinion), this court approved of hearing a due process claim not raised in
the inmate's administrative appeal because it arose out of and was related to the
disciplinary proceeding.

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Here, the issue Amos raised for the first time in his petition does not truly arise out
of his disciplinary proceeding. Rather than focusing on the proceeding itself or the
appropriateness of disciplinary segregation as a penalty in this particular case, Amos
alleges that a large number of outside factors, including his previous time in segregation
and his mental health needs, turn this single penalty into an intolerable and
unconstitutional condition of confinement. This challenge more resembles an objection to
"policies and conditions within the jurisdiction of the facility" typical of a facility
grievance than an appeal from a specific disciplinary action. See K.A.R. 44-15-
101a(d)(1)(A). A facility grievance allows for the warden to investigate the allegations
and to remedy any problem that investigation uncovers. K.A.R. 44-15-101a(e), (f). In
contrast, an appeal to the Secretary from a disciplinary action is limited only to (1)
whether the procedure complied with the applicable standards and procedures, (2)
whether the decision by the hearing officer was supported by some evidence, and (3)
whether the penalty was appropriate and proportionate to the offense under the
circumstances of the case. K.A.R. 44-13-704(b). Amos' complicated allegations about his
mental health, long periods in disciplinary segregation, and the potential psychological
harm suffered appeared to fall outside the more limited scope of a disciplinary appeal.
Therefore, it is likely that the district court's summary dismissal was proper.

In all events, if an issue about disciplinary segregation was deemed to arise out of
the disciplinary hearing, Amos' argument still fails. Courts in Kansas will only review an
inmate's claim that he was placed in disciplinary segregation if the Due Process Clause
was violated, and there is only a violation when "the discipline imposed represents a
significant and atypical hardship on the prisoner which was not contemplated within the
realm of conditions of the original sentence." Hogue, 279 Kan. 848, Syl. ¶ 5.

Over the last roughly 20 years, "Kansas courts have consistently found that neither
disciplinary segregation nor restricted privileges constitute significant and atypical
hardships for purposes of a due process analysis." Brown v. Cline, No. 107,983, 2012 WL
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5392191, at *3 (Kan. App. 2012) (unpublished opinion); see Starr v. Bruce, 35 Kan. App.
2d 11, 13, 129 P.3d 583 (2005) (disciplinary segregation), rev. denied 280 Kan. 984
(2006); Ramirez v. State, 23 Kan. App. 2d 445, 447, 931 P.2d 1265 (restricted privileges),
rev. denied 262 Kan. 962 (1997). In fact, even when a hearing officer assigned a period
of disciplinary segregation lasting 1 day longer than the maximum period authorized by
the governing regulation, our Kansas Supreme Court still found no atypical hardship. See
Hogue, 279 Kan. at 855.

Without acknowledging our previous caselaw, Amos relies on a single federal
district court case to support his position that his mental health issues transform his time
in disciplinary segregation into an atypical hardship. That case, Madrid v. Gomez, 889 F.
Supp. 1146 (N.D. Cal. 1995), is dramatically distinguishable from the case at bar. There,
inmates assigned to the Security Housing Unit at Pelican Bay State Prison in California
brought a civil rights action against the Director of the Department of Corrections. They
alleged in part that the conditions in the unit were so severe that confinement there
constituted cruel and unusual punishment under the Eighth Amendment to the
Constitution of the United States. The situation for inmates assigned to the Security
Housing Unit were harsh: they saw little natural light, spent more than 22 hours a day
confined to their cells, rarely interacted with other people, and had extremely limited
privileges. Based on these facts, the district court concluded that although these
conditions did not generally violate the Eighth Amendment, continued confinement there
constituted cruel and unusual punishment for those inmates who were either already
mentally ill or "at an unreasonably high risk of suffering serious mental illness as a result
of the present conditions in the [unit]." 889 F. Supp. at 1267.

Amos' present argument is rooted in the Due Process Clause, not the Eighth
Amendment. Moreover, nothing in either his brief or petition suggests that the temporary
conditions he faces in disciplinary segregation rise to the severe deprivation suffered by
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the permanent residents of the unit in Madrid. In short, his reliance on this case is
misplaced.

In conclusion, the hearing officer assigned Amos to 15 days of disciplinary
segregation. This short period of restricted privileges and isolation is not an atypical
hardship under Kansas law. Therefore, district court did not err in dismissing Amos'
petition.

Affirmed.