Manis v. Norwood

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NOT DESIGNATED FOR PUBLICATION

No. 118,194

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BRIAN MANIS,
Appellant,

v.

JOE NORWOOD, JAMES HEIMGARTNER, and KENNETH MCGUIRE,
Appellees.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed May 25, 2018.
Reversed with directions.

Brian Manis, appellant pro se.

Joni Cole, legal counsel, of El Dorado Correctional Facility, for appellees.

Before ATCHESON, P.J., PIERRON and STANDRIDGE, JJ.

PER CURIAM: Brian Manis, an inmate at the El Dorado Correctional Facility
(EDCF), appeals the district court's decision to summarily dismiss his K.S.A. 2016 Supp.
60-1501 habeas corpus action challenging administrative discipline imposed on him for
violating prison rules. Manis contends the disciplinary hearing violated his due process
rights in several respects. Because there is no evidence in the record to support the
disciplinary officer's decision, we reverse with directions to vacate Manis' disciplinary
violations.


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FACTS

Manis appeals two convictions for possessing contraband in violation of EDCF
prison rules following an October 12, 2016 mass shakedown.

The facts alleged against Manis were described in a disciplinary report authored
by EDCF Special Agent S. Galloway. The report stated that Unit Team Manager Richard
English observed Manis discard something onto the floor while Manis sat at a table in the
dayroom of the facility during the mass shakedown. As English pointed to the item under
the table, Manis stood up and walked away. English and Unit Team Manager Moore
recovered the item, which they discovered to be a hand-rolled cigarette that was burnt on
one end, and which was described as containing a brown and green leafy botanical
substance. The report stated that the incident was recorded on four video cameras in the
facility. The substance later tested positive for synthetic cannabinoids, a controlled
substance. Manis was charged with K.A.R. 44-12-901, possession of dangerous
contraband, and K.A.R. 44-12-1001, for violating K.S.A. 2016 Supp. 21-5914, traffic in
contraband in a correctional institution. He pled not guilty.

Manis' disciplinary hearing was held on October 20, 2016. A CSI officer, who was
not identified in the hearing record, testified that he or she served the disciplinary report
upon Manis and that Manis pled not guilty. Manis then testified. Manis testified that he
"wasn't even at the table" but was walking away from the table when a couple of guys
asked him what was on his shoe. Manis said he was trying to get the item off his shoe
when English saw him. Next, Manis presented witness testimony from Scott Buchheit,
another inmate. Buchheit testified that he saw something on the bottom of Manis' shoe
and that "'English may have thought [Manis] threw it on [the] floor.'" Buchheit testified
that he remembered telling Manis something was on Manis' shoe and that English came
over when Manis tried to remove it.

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Outside of Manis' presence, the hearing officer reviewed a videotape of the
incident from a security camera. At the conclusion of the hearing, the hearing officer
concluded that, by a preponderance of the evidence, Manis "was seen dropping item on
floor," and that the reporting officer's disciplinary report stood as written. In the hearing
report ultimately drafted by the hearing officer, the hearing officer summarized the
contents of the video he or she reviewed outside Manis' presence: "Viewed camera #Unit
27 #1 showed English and table. There was movement by table English walk[s] straight
to table and picks up item on floor. [Inmate] Manis is standing up as English walk[s] to
table." After finding Manis guilty, the hearing officer sanctioned Manis to 30 days of
restriction and fined Manis $20 for each of the two charges.

Manis exhausted the administrative appeal process and then filed a K.S.A. 2016
Supp. 60-1501 petition in the Butler County District Court. Manis argued that his due
process rights were violated because he was unable to adequately prepare for the case and
to view the video camera footage of the incident. Manis also claimed there was no
evidence to uphold the hearing officer's decision.

The district court summarily dismissed the petition. The court held that Manis
received due process—he received proper notice of the charges and was allowed to
present testimony and a witness in his defense at the disciplinary hearing—and the
hearing officer reviewed the video evidence of the incident. The court noted that the
disciplinary report indicated that a corrections officer observed Manis drop an item onto
the ground, and two officers identified the item as a burnt hand-rolled cigarette where
Manis was standing. The court noted that the hearing officer did not find Manis'
explanation that the cigarette was stuck to his shoe to be credible and that was a
determination best left to the trier of fact. The district court described the evidence as
"very detailed, in writing, and confirmed orally by the reporting officer, not to mention
the camera and chemical test results," and held that the evidence "far exceeds the minimal
requirements" to meet due process. Manis filed a pro se appeal.
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ANALYSIS

On appeal, Manis argues the district court erred in summarily dismissing his
K.S.A. 2016 Supp. 60-1501 petition. Specifically, he argues: (1) There was no evidence
to support his convictions; (2) the disciplinary report was not written within 48 hours of
the incident, as mandated by K.A.R. 44-13-201; (3) the disciplinary hearing officer
improperly denied his request to review the camera footage of the incident; and (4) the
disciplinary hearing officer erred in denying his request for a continuance.

A habeas corpus action under K.S.A. 2017 Supp. 60-1501 challenges the
conditions of an inmate's confinement. To avoid summary dismissal, the petition must
allege facts that demonstrate either shocking and intolerable conduct or continuing
mistreatment that violates constitutional protections. Johnson v. State, 289 Kan. 642, 648,
215 P.3d 575 (2009). K.S.A. 2017 Supp. 60-1503(a) authorizes the summary dismissal of
a habeas corpus petition "[i]f it plainly appears from the face of the petition and any
exhibits attached thereto that the plaintiff is not entitled to relief in the district court."
Appellate courts review summary dismissals de novo. 289 Kan. at 649.

Manis' petition alleged several violations of his constitutional due process rights.
An inmate has the burden of proof to make a successful claim of a constitutional
violation. Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505 (1999). When an
appellate court considers an inmate's claim of a due process violation, it applies a two-
step analysis. The first step is to determine whether the inmate was deprived of life,
liberty, or property. If the court determines there has been a deprivation of life, liberty, or
property due to State action, the court then must determine the extent and nature of the
process due. Hogue v. Bruce, 279 Kan. 848, 850-51, 113 P.3d 234 (2005).

In this case, Manis' penalty included a $20 fine for each of his two infractions,
which implicates the Due Process Clause of the Fourteenth Amendment to the United
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States Constitution. See Anderson v. McKune, 23 Kan. App. 2d 803, 807, 937 P.2d 16
(1997). Accordingly, we now must determine the nature and extent of the process due to
Manis.

Manis claims he was deprived of due process in that the evidence at the hearing
did not support the hearing officer's determination that English observed Manis in
possession of contraband. In a habeas corpus proceeding brought by an inmate
challenging a prison official's disciplinary action on the basis of insufficient evidence, a
district court "is required to uphold such disciplinary action if there was 'some evidence'
to support the prison hearing officer's determination that such a violation occurred."
Anderson, 23 Kan. App. 2d 803, Syl. ¶ 5. A reviewing court need not examine the whole
record, assess witness credibility, or weigh the evidence. Washington v. Roberts, 37 Kan.
App. 2d 237, 246, 152 P.3d 660 (2007). Even meager evidence can support a disciplinary
board's findings if "'the record is not so devoid of evidence that the findings . . . were
without support or otherwise arbitrary.'" Anderson, 23 Kan. App. 2d at 808.

In support of his claim, Manis cites to Rincon v. Schnurr, No. 114,670, 2016 WL
3031284 (Kan. App. 2016) (unpublished opinion). Rincon was an inmate who was
charged with violating prison rules for punching Gerald Speer, a civilian program
supervisor. Corrections Officer T.L. Smothers, who did not observe the incident, wrote
the disciplinary report after interviewing Speer. Rincon requested that Speer testify at his
prison disciplinary hearing, but since Speer was not Kansas Department of Corrections
(KDOC) staff, the hearing officer could not compel his presence. Instead, Smothers
testified about the incident based on his interview with Speer, and the hearing officer read
a notarized statement of Speer's account into the record. Rincon's objected to introduction
of the notarized statement into evidence based on Speer's unavailability. 2016 WL
3031284, at *1. The hearing officer overruled the objection and found Rincon guilty.

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Rincon petitioned for habeas corpus under K.S.A. 60-1501, arguing that there was
no admissible evidence to establish that Rincon punched Speer. A panel of this court
agreed. The court held that the Smothers' testimony could not be admitted for the purpose
of establishing what Speer witnessed. 2016 WL 3031284, at *5. The court also held that
Speer's unsworn notarized statement was not evidence on which the hearing officer could
rely because the regulations permit only sworn affidavit statements. 2016 WL 3031284,
at *5; see K.A.R. 44-13-405a(d). Because Smothers' testimony and the notarized
statement were the only evidence of what Speer witnessed, this court reversed the district
court. 2016 WL 3031284, at *5.

In this case, neither English nor Moore—the only officers who were present at the
shakedown—testified at the disciplinary hearing. Only one unidentified CSI officer
testified at the hearing and that officer only testified to the fact that he or she delivered
the disciplinary report to Manis after the incident and that Manis pled not guilty. It does
not appear from the hearing record that Galloway testified or that the disciplinary report
he or she authored was read into the record. And even if Galloway had testified about the
contents of the disciplinary report, Galloway did not witness the incident. Like in Rincon,
Galloway's report of what English observed cannot substitute for English's testimony. See
2016 WL 3031284, at *5 ("[T]he testimony and report of Smothers could not have been
admitted for the purpose of establishing what Speer witnessed. Smothers' account simply
passed along an unsworn version of events from Speer.").

Unlike in Rincon, the hearing officer in this case also reviewed video evidence
from a security camera that recorded the incident. The hearing officer then drafted a
summary of what he or she reviewed in the video and included that summary into the
hearing report. The summary stated that "[t]here was movement by [the] table," English
walked directly to the table and picked up an item on the floor, and Manis stood up as
English walked toward the table. But the video itself is not in the record so this court
cannot review whether it supports the hearing officer's summary. And there is no way to
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tell from the video summary's descriptive narrative of the events what English personally
observed without his or her testimony. In other words, there is no testimony or other
evidence that Manis "was seen dropping item on floor," as the hearing officer found.

The KDOC violated Manis' due process rights by finding a disciplinary violation
and imposing punishment without any evidence to support such violation. Accordingly,
we reverse the district court's summary dismissal of Manis' K.S.A. 2016 Supp. 60-1501
petition and direct the KDOC to vacate the disciplinary violations.

Because we have directed the KDOC to vacate the disciplinary violations
convictions based on insufficiency of the evidence, the balance of Manis' remaining due-
process claims are moot.

Reversed with directions.