Hernandez v. Burris

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NOT DESIGNATED FOR PUBLICATION

No. 119,843

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEVEN HERNANDEZ,
Appellant,

v.

DOUGLAS BURRIS, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed December
6, 2019. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Sherri Price, special assistant attorney general, of Lansing Correctional Facility, for appellees.

Before GARDNER, P.J., GREEN and ATCHESON, JJ.

PER CURIAM: Steven Hernandez, an inmate at the state prison in Lansing, filed a
petition for habeas corpus relief in the Leavenworth County District Court to recover
$5.40 he paid in postage to have a magazine a prison employee confiscated as likely
contraband sent from the prison to the Department of Corrections headquarters in Topeka
as part of an administrative review he requested. The official conducting the review
determined the issue of Men's Fitness magazine did not contain sexually explicit material
in violation of prison regulations and had been improperly seized; the official directed
that the magazine be delivered to Hernandez. After unsuccessfully pursuing a
departmental claim for reimbursement of the $5.40, Hernandez filed a petition under
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K.S.A. 60-1501 on the grounds the failure to reimburse him amounts to a constitutional
due process violation. The district court held a hearing and denied Hernandez relief.
Hernandez has appealed.

Under K.A.R. 44-12-313, prison inmates may not possess sexually explicit
materials, as defined in that regulation. And under K.A.R. 44-12-601 (2017 Supp.),
prison employees screen mail sent to inmates for such materials and confiscate items that
appear to violate the regulation. Inmates are given notice that incoming mail has been
confiscated and may request an administrative review of the seizure. They must pay the
postage to have the seized materials sent from the prison to the department's offices in
Topeka for review. As provided in K.A.R. 44-12-601(f)(3) (2017 Supp.), indigent
inmates do not have to pay the postage in advance to obtain an administrative review.
Hernandez does not claim to be indigent and paid $5.40 to have the magazine sent to
Topeka. The regulations do not provide for reimbursement of the postage if the inmate's
challenge is successful. And Hernandez has not recouped the postage.

This case is a companion to five other 60-1501 actions Hernandez filed in the
district court contesting the confiscation of various publications mailed to him. Prison
employees concluded they contained sexually explicit materials. Hernandez lost his
administrative challenges to the seizure of those materials. And the district court
dismissed his 60-1501 actions. This panel affirmed the district court's rulings in those
cases in a consolidated appeal. See Hernandez v. State (No. 119,838, this day decided)
slip op. at 1 (unpublished opinion) (Hernandez I).

In those consolidated cases, Hernandez argued, among other things, that the
regulation requiring him to pay postage in conjunction with an administrative review
violated the due process protections of the Fourteenth Amendment to the United States
Constitution. We rejected that argument. Hernandez I, slip op. at 3-4. We presume the
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reader's familiarity with our discussion in Hernandez I and incorporate here our
reasoning on that point.

The only factual difference between those cases and this one is the result of the
administrative review. Hernandez lost in those reviews, and he prevailed in this one. We
fail to see a relevant, let alone determinative, distinction in the constitutional due process
analysis, as a result. The modest amount involved, especially coupled with an
accommodation for indigent inmates to access the review process without paying
postage, does not impose a barrier to being heard at a meaningful time and in a
meaningful way consistent with due process requirements. See Mathews v. Eldridge, 424
U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) ("The fundamental requirement of
due process is the opportunity to be heard 'at a meaningful time and in a meaningful
manner.' [Citation omitted.]"); Taylor v. Kansas Dept. of Health & Environment, 49 Kan.
App. 2d 233, 240, 305 P.3d 729 (2013). Due process protections themselves do not
require that nominal costs a party incurs to vindicate a property right or interest
necessarily must be reimbursed by the losing party. The Legislature or a governmental
agency may by statute or regulation impose a reimbursement requirement, but it is not
constitutionally mandated. See Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 562,
565-66, 132 S. Ct. 1997, 182 L. Ed. 2d 903 (2012) (judicial authority to award or deny
costs derives from statutory grant); Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S.
437, 439, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987) (district court authority to award costs
to prevailing party fixed by statute or contractual agreement). The absence of any such
mandate undercuts Hernandez' claim.

Affirmed.