Johnson v. Cline

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NOT DESIGNATED FOR PUBLICATION

No. 119,224

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RHEUBEN JOHNSON,
Appellant,

v.

SAM CLINE, Warden, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed June 21,
2019. Affirmed.

Charles Joseph Osborn, of Osborn Law Office, LLC, of Leavenworth, for appellant.

Sherri Price, legal counsel and special assistant attorney general, Lansing Correctional Facility,
for appellee.

Before ARNOLD-BURGER, C.J., HILL, J., and STUTZMAN, S.J.

PER CURIAM: Rheuben Johnson was administratively sanctioned with restrictions
on his privileges for violating prison disciplinary regulations. He filed a petition with the
Leavenworth County District Court for issuance of a writ under K.S.A. 60-1501, alleging
his due process rights were violated and he had been deprived of liberty and property by
the department of corrections. The district court summarily denied Johnson's petition and
Johnson appealed. We find no error and affirm the district court's summary dismissal.


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FACTS AND PROCEDURAL BACKGROUND

A prison employee filed a disciplinary report on Johnson alleging he violated
regulations on October 10, 2017. The report said Johnson was sent to the health clinic
after claiming he was sick, but when he arrived at the clinic, Johnson told two prison
employees he was not actually sick but wanted additional clothing and the heat turned on
because he was cold. The disciplinary report alleged violations of K.A.R. 44-12-320a,
interfering with official duties, and K.A.R. 44-12-303, lying. At a hearing held on
October 27, 2017, the reporting officer's testimony was consistent with the allegations in
the report. Johnson denied the alleged violations. The hearing officer found Johnson
guilty of lying but acquitted him of interfering with official duties, finding insufficient
evidence to support that violation. The hearing officer sanctioned Johnson with a 30-day
privilege restriction.

Additional disciplinary reports were filed on Johnson alleging two violations on
October 11, 2017, the day following the charge for lying about being ill. Each of these
reports cited Johnson for violating K.A.R. 44-12-1001 by bringing fraudulent claims for
payment, one seeking $40 for a replacement lightbulb and the other claiming $60 in
compensation for a replacement television remote control. At the hearings, Johnson made
numerous motions and objections before admitting that he submitted the property claims
as alleged. The hearing officer found it was more likely true than not that Johnson was
guilty of the violations and sanctioned Johnson to 15 days of privilege restriction in each
case.

Johnson appealed the three disciplinary sanctions to the Secretary of Corrections,
who approved the penalties and found the procedures substantially complied with
departmental and facility standards and that the hearing officer's decision was based on
some evidence. Next, Johnson filed a petition with the district court seeking issuance of a
writ of habeas corpus based on these disciplinary incidents and sanctions. The district
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court summarily dismissed the petition, finding Johnson "has not pled, and the file does
not indicate, any liberty interest that would trigger court review pursuant to K.S.A. 60-
1501."

Johnson timely appeals. After filing his notice of appeal, Johnson filed a motion
with the district court to reconsider the dismissal and assessment of costs. The district
court denied the motion.

ANALYSIS

Johnson argues the district court's summary dismissal of his habeas corpus petition
was error. K.S.A. 2018 Supp. 60-1501 allows any person "detained, confined, or
restrained of liberty" in Kansas to petition a court for a writ of habeas corpus. "To avoid
summary dismissal of a K.S.A. 60-1501 petition, the petitioner's allegations must be of
shocking and intolerable conduct or continuing mistreatment of a constitutional stature."
Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). Summary dismissal is proper
if, on the face of the petition, it can be established the petitioner is not entitled to relief, or
if, from undisputed or incontrovertible facts it appears as a matter of law that no cause for
granting a writ exists. Our review of a summary dismissal is unlimited. 289 Kan. at 648-
49.

"The Fifth and Fourteenth Amendments to the United States Constitution protect
an individual's due process rights and prohibit the deprivation of a significant life, liberty,
or property interest." State v. Turner, 300 Kan. 662, 683, 333 P.3d 155 (2014). To decide
whether there has been a denial of due process, we use a two-step analysis: We first
determine whether the State deprived the person of life, liberty, or property. If so, we
then determine whether the person received the extent and nature of the due process due
under the circumstances. Johnson, 289 Kan. 642, Syl. ¶ 3; Hogue v. Bruce, 279 Kan. 848,
850-51, 113 P.3d 234 (2005).
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At the first step of the analysis, Johnson fails to show he has been deprived of a
liberty or property interest. The only sanction he received from the disciplinary violations
was a restriction of privileges, and a restriction of privileges is not a recognized liberty or
property interest that results in a due process review by the district court. See Bankes v.
Simmons, 265 Kan. 341, 351, 963 P.2d 412 (1998) (granting parole, spending limitations,
regulation of visiting hours, withholding good time awards, and regulation of other daily
activities not atypical and not posing significant hardship within a prison do not involve a
liberty interest).

In his petition to the district court, Johnson pointed out that removing earned good
time credits raises a liberty interest. And although Johnson is correct that inmates have a
protected liberty interest in good time credits already earned, there is no evidence that he
lost any earned good time credits because of these disciplinary violations. See Hardaway
v. Larned Correctional Facility, 44 Kan. App. 2d 504, 505, 238 P.3d 328 (2010)
(prisoner has no protected liberty interest in good time credits not yet earned or awarded).
Johnson's petition tried to address that apparent deficiency, as he argued that "his good
time was anticipated and/or earned-per-day," and that "prior years have caused [him] to
anticipate the same 15% good time for every day of every 4 months of every year—good
time was earned every day." In other words, Johnson proposes a theory that daily accrual
prior to the actual, periodic, award of good time is the equivalent of "earned" good time.

Johnson is likely correct that his prospects for an award of good time at the next
regular date were affected by his disciplinary violations. The regulation that governs
awarding and withholding of good time credits for incarcerated offenders specifically
includes "the inmate's disciplinary record" in the list of factors that "shall be considered
in determining whether or not an inmate is awarded good time credits." K.A.R 44-6-
115a(d)(5) (2017 Supp.). Johnson's argument essentially would declare that a day without
a violation is a good time day put on the books—i.e. "earned"—a concept he fails to
support with any authority other than his own reasoning. And his reasoning fails to
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account for the other four particularized factors in the regulation's mandatory list, or the
sixth general factor that requires consideration of "any other factors related to the
inmate's general adjustment, performance, behavior, attitude, and overall demonstration
of individual responsibility and accountability." K.A.R. 44-6-115a(d)(6) (2017 Supp.).
Any of those other factors can affect the award of good time, even in the absence of a
disciplinary violation. The sanctions imposed on Johnson did not order loss of earned
good time and we are not persuaded by Johnson's theory of good time accrual as a basis
for claiming a protected interest.

Even if Johnson did assert a valid liberty or property right, he did not allege
conduct that meets our standard for shocking or intolerable conduct. The United States
Supreme Court has said that for conduct to be considered shocking or intolerable, "the
governmental actor's behavior must be 'so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.' County of Sacramento v. Lewis, 523 U.S.
833, 847 n.8, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)." Merryfield v. State, 44 Kan.
App. 2d 817, 820, 241 P.3d 573 (2010). Johnson failed to support his allegations of
shocking and intolerable conduct with facts in his petition. He complained of various
evidentiary and procedural deficiencies that he claimed constituted shocking or
intolerable conduct, but whether taken individually or collectively, they cannot
reasonably be considered shocking or intolerable.

Johnson's allegations did not show deprivation of a liberty or property interest and
would not support a finding of "shocking and intolerable conduct or continuing
mistreatment of a constitutional stature." On the face of his petition, Johnson was not
entitled to relief. The district court was correct in its summary dismissal.

Affirmed.