Rincon v. Schnurr

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NOT DESIGNATED FOR PUBLICATION

No. 114,670

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROBERTO S. RINCON,
Appellant,

v.

DAN SCHNURR,
Appellee.


MEMORANDUM OPINION

Appeal from Ellsworth District Court; RON SVATY, judge. Opinion filed May 27, 2016.
Reversed.

Roberto S. Rincon, appellant pro se.

Robert E. Wasinger, of Kansas Department of Corrections, of Ellsworth, for appellee.

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

Per Curiam: Roberto S. Rincon, an inmate in the Kansas correctional system,
appeals the dismissal of a habeas corpus action he filed in Ellsworth County District
Court challenging administrative discipline imposed on him for violating prison rules.
Rincon has shown that insufficient evidence supported the disciplinary action. We,
therefore, reverse the district court and grant him relief under K.S.A. 60-1501 by setting
aside the administrative violation and vacating the punishment imposed.

While incarcerated at the state prison in Norton, Rincon participated in a work
program doing unskilled construction and maintenance on municipal property. According
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to the administrative charge, Rincon punched Gerald Speer, his program supervisor, in
the stomach on July 29, 2015, while they were working. Speer is a civilian employee of
the City of Norton. Rincon was cited for battery, a class I offense violating prison rules.
See K.A.R. 44-12-324.

Rincon requested an administrative hearing on the alleged violation and requested
Speer appear at the hearing. Because Speer is not an employee of the Kansas Department
of Corrections, the hearing officer could issue a summons requesting his voluntary
appearance at the hearing but had no means to compel his attendance. See K.A.R. 44-13-
307(e). The record fails to indicate the Department ever sent a summons to Speer or
otherwise communicated a request that he appear at the hearing.

At the administrative hearing, the Department presented a report from Corrections
Officer T.L. Smothers. The report included a summary of Smothers' interview of Speer.
Speer told Smothers that Rincon had punched him in the stomach three times in quick
succession. Smothers testified at the hearing and acknowledged he did not see the
incident. Rincon questioned Smothers about what Speer had said. The Department also
offered a notarized statement from Speer that was received over Rincon's objection.
Rincon made it clear he wanted Speer present in person. The notarized statement
basically recounted that during a work break, Rincon approached Speer and struck him in
the stomach three times. Speer described himself as "totally caught off guard" by
Rincon's actions. The statement indicated inmate James T. Brown, IV, was within a few
feet of the two at the time. Speer identified two other inmates in the general vicinity.

Rincon testified that he approached Speer and punched toward him but did not
make physical contact. He suggested this was horseplay of the sort Speer permitted on
the work detail. Rincon speculated that Speer reported him because he had been trying to
get off the work crew. Brown testified that he saw Rincon "shadow box" with Speer
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during a work break. He said Rincon did not actually strike Speer. Brown also stated
Speer permitted and engaged in some horseplay.

The hearing officer determined Rincon committed the charged violation and
imposed a penalty of 20 days in disciplinary segregation, restriction of privileges for 60
days, and loss of 60 days of earned good-time credit. Rincon initiated an administrative
appeal of the determination. The record indicates Rincon exhausted that process. In the
meantime, he was transferred from the Norton prison to the one in Ellsworth. We do not
understand the transfer to have anything to do with the issues before us. But as a result of
the transfer, venue for Rincon's 60-1501 petition lay in Ellsworth County.

In October 2015, Rincon filed his petition in the district court and alleged both that
he had been denied due process and that the disciplinary action rested on inadequate
evidence. Defendant Dan Schnurr is the warden of the Ellsworth prison. The district court
summarily dismissed the petition for failing to state a claim but provided no narrative
explanation of the ruling. Rincon has appealed the dismissal to us.

When the district court denies a 60-1501 petition without hearing evidence, we are
in an equally good position to determine if the petition and the relevant record support a
cognizable claim. We understand the administrative hearing record to be part of the
appellate record. The issues on appeal may be resolved from an examination of the
hearing record made in light of the parties' arguments. Accordingly, we owe no particular
deference to the district court's ruling. See Johnson v. State, 289 Kan. 642, 648-49, 215
P.3d 575 (2009). The petition itself should be construed in a light favoring the inmate.
Shepherd v. Davies, 14 Kan. App. 2d 333, 335, 789 P.2d 1190 (1990).

To seek habeas corpus relief, an inmate must allege a constitutional deprivation.
Rincon has done so. The loss of a protected liberty interest or property right without
constitutionally adequate due process is sufficient. See Germann v. Conover, No. 110,643
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2014 WL 3397184, at *1 (Kan. App. 2014) (unpublished opinion). Earned good-time
credit reflects a liberty interest in that the credit shortens an inmate's incarceration.
Kesterson v. State, 276 Kan. 732, Syl. ¶ 2, 79 P.3d 1074 (2003). So the loss of that credit
as a punishment entails the deprivation of a liberty interest triggering constitutional due
process protections that may be vindicated in a 60-1501 action.

As guaranteed in the Fourteenth Amendment to the United States Constitution,
due process involves an especially flexible concept that must be shaped to the nature of
the interest affected and the circumstances of any potential diminution of the interest. See
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19, 98 S. Ct. 1554, 56 L. Ed. 2d
30 (1978). Some situations demand a high degree of process or procedural protection,
such as a criminal prosecution, while others do not. In a prison disciplinary proceeding,
an inmate's constitutional right to procedural due process entails: (1) written notice of the
charges sufficient to permit preparation of a defense; (2) an impartial hearing and hearing
officer; (3) an opportunity to call witnesses and to present evidence; and (4) a written
statement of the factual findings and reasons for the disciplinary decision. See In re
Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001) (citing
Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S. Ct. 2963, 41 L. Ed. 2d 935 [1974]).

To satisfy due process protections, there need only be "some evidence" in a
prisoner disciplinary proceeding supporting the hearing officer's determination of a
violation. Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S. Ct. 2768, 86 L. Ed. 2d 356
(1985); Sammons v. Simmons, 267 Kan. 155, 158-59, 976 P.2d 505 (1999) (recognizing
Hill as supplying the governing standard and quoting at length from that decision). The
inmate bears the burden of proving prison officials failed to satisfy that comparatively
low evidentiary requirement. Sammons, 267 Kan. at 158. For that purpose, a reviewing
court must accept the evidence duly admitted in the disciplinary process in a light most
favorable to the penal institution and, therefore, must resolve conflicts in the evidence
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against the inmate. Hill, 472 U.S. at 455-56; Sammons, 267 Kan. at 158 (quoting Hill,
472 U.S. at 455-56).

In Hill, the Court fashioned those standards to balance inmates' due process rights
against a penal institution's need to operate safely and efficiently, especially given the
nature of its purpose and clientele. Acknowledging the standards to be relaxed, the Court
held that requiring "a modicum" of evidence supporting the disciplinary action would
sufficiently serve inmates' due process rights by "prevent[ing] arbitrary deprivations
without threatening institutional interests or imposing undue administrative burdens." 472
U.S. at 455.

Rincon raises two objections to the administrative hearing that he says deprived
him of due process. First, he complains that he was not permitted to question Speer and
the hearing officer erred in admitting Speer's notarized statement. Basically, Rincon
argues that adequate due process in a prison disciplinary proceeding includes the right of
an inmate to confront the witnesses offering evidence against him. To the extent the issue
has been addressed, the courts generally have found no due process right of confrontation
in those proceedings. See Wolff, 418 U.S. at 567-68 (declining to find confrontation and
cross-examination to be components of constitutional due process in inmate disciplinary
proceedings); Mendoza v. Miller, 779 F.2d 1287, 1292 n.3 (7th Cir. 1985) (right to
confront witnesses may be limited in the interests of prison security); Choyce v. Cockrell,
51 Fed. Appx. 483, 2002 WL 31319342 (5th Cir. 2002). In Washington v. Roberts, 37
Kan. App. 2d 237, 242, 152 P.3d 660 (2007), this court acknowledged the discussion in
Wolff weighing against a constitutional due process right to confront and cross-examine
witnesses. The court found no due process violation in that case under quite different
circumstances. The inmate wanted to confront and question in person the corrections
officer reporting the alleged disciplinary violation. The request was denied. But the
inmate was permitted to question the officer during a telephone conference call after the
officer had been placed under oath. 37 Kan. App. 2d at 242.
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Consistent with that authority, we presume Rincon had no due process right to
confront and cross-examine Speer. In turn, we decline to grant him relief on the grounds
the Department had to produce Speer at the disciplinary hearing or otherwise make him
available for cross-examination. We reject Rincon's subsidiary argument that because the
Department apparently made no effort to issue a summons to Speer for his voluntary
appearance—contrary to its own rules—the failure amounted to a constitutional due
process violation. A state agency's failure to follow its own rules does not in and of itself
necessarily create a due process violation. See Taylor v. Kansas Dept. of Health &
Environment, 49 Kan. App. 2d 233, 242, 305 P.3d 729 (2013), rev. denied 299 Kan. 1274
(2014); Washington, 37 Kan. App. 2d at 242.

We turn to Rincon's second argument—the Department failed to present "some
evidence" establishing the disciplinary violation. We reiterate that the some-evidence
standard is a constitutional requirement. In other words, the Department can impose
punishment on an inmate entailing the loss of a protected liberty interest or property right
only upon presentation of "some evidence" of a violation.

There is a predicate question that must be answered in determining if the
Department has presented some evidence in a given disciplinary proceeding. What can
properly be admitted and considered as evidence? Although the United States Supreme
Court did not address that precise issue in Wolff, the court's discussion of how much
process is constitutionally due inmates in disciplinary proceedings is highly instructive.
Apart from the required protections we earlier listed, which are drawn directly from
Wolff, the Court repeatedly emphasized that prison officials should be given great latitude
in fashioning disciplinary processes that balance the institutional need for safety and
security with an inmate's right to a fair hearing. Wolff, 418 U.S. at 562 ("disciplinary
proceedings must be structured by prison authorities"); 418 U.S. at 563 ("there would be
great unwisdom in encasing the disciplinary procedures in an inflexible constitutional
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straitjacket that would necessarily call for adversary proceedings typical of the criminal
trial"); 418 U.S. at 566-67 (prison officials must be afforded "necessary discretion
without being subject to unduly crippling constitutional impediments[,] . . . . and we stop
short of imposing a more demanding rule with respect to witnesses and documents"); 418
U.S. at 568 ("Within the limits set forth in this opinion we are content for now to leave
the continuing development of measures to review adverse actions affecting inmates to
the sound discretion of corrections officials administering the scope of such inquiries.").
Accordingly, prison officials generally and the Department in particular may adopt rules
of evidence and procedure for inmate disciplinary proceedings, so long as those rules are
consonant with required (and modest) due process protections. Those rules need not
conform to what is permitted in either civil or criminal judicial proceedings. The
Department has exercised that prerogative. In turn, we can and should apply those
evidentiary rules to sort the admissible from the inadmissible in a disciplinary proceeding
when the sufficiency of the evidence has been challenged.

Of particular significance here, K.A.R. 44-13-405a(d) provides: "With the
charged inmate's consent, the hearing officer may admit the affidavit of a non-party
witness in lieu of an appearance by the witness. If a witness is denied or cannot attend in
a timely manner, the hearing officer may also admit the affidavit of this witness." The
rule permits a hearing officer to admit an affidavit from a witness who cannot attend the
hearing. Speer, as someone who could not be compelled to appear, falls within the scope
of K.A.R. 44-13-405a(d).

The Department did not offer an affidavit from Speer. It presented only a notarized
statement. And Rincon objected. The difference between an affidavit and a notarized
statement is material. An affiant swears to the truth of an affidavit's content and would be
subject to perjury for deliberately making a false representation. A notarized statement is
not made under oath. The notary simply verifies that the individual signing the statement
is the person identified in the statement as its author. See K.S.A. 53-502(a) ("notarial act"
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defined to include distinct functions of "witnessing or attesting a signature" and "taking a
verification upon oath or affirmation"); Clark v. State, No. 109,982, 2014 WL 4916462,
at *2 (Kan. App. 2014) (unpublished opinion) (pointing out difference between notarized
statement and affidavit), rev. denied 302 Kan. ___ (July 24, 2015). Speer's statement does
not purport to have been given under oath, and nothing on the face of the document
suggests otherwise.

In K.A.R. 44-13-405a(d), the Department recognizes that the taking of an oath
confers a degree of trustworthiness to the written representations and, in turn, aids a
factfinder in sorting out truth from mendacity. The evidentiary requirement makes sense
and more than satisfies the due process protections for an inmate disciplinary proceeding.
See Clark, 2014 WL 4916462, at *2 ("The solemnity of an oath and the possibility of
criminal prosecution for knowingly making a false representation lend some
trustworthiness to a written statement."); In re Guardianship & Conservatorship of
L.M.H., No. 108,297, 2013 WL 2395900, at *13 (Kan. App. 2013) (unpublished opinion)
("[T]he principal mechanisms for measuring the candor and reliability of a witness [are]:
(1) the taking of an oath to tell the truth; (2) the rigor of cross-examination to test the
statements; and (3) the fact-finder's opportunity to gauge demeanor."). Consistent with
K.A.R. 44-13-405a(d), the hearing officer should not have admitted and considered the
unsworn statement from Speer, especially in the face of Rincon's objection.

In turn, applying the Department's own evidentiary rules, we should not and do not
consider Speer's statement in determining if the evidence presented at the disciplinary
hearing cleared the requisite "some evidence" standard. Likewise, the 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. Because Speer turned out to be an absent witness, that secondhand version
could not substitute for an affidavit from him as required by K.A.R. 44-13-405a(d). To
hold otherwise would promote a strange anomaly allowing the Department to utterly
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ignore K.A.R. 44-13-405a(d) by simply having someone interview an unavailable
witness and then testify at the hearing to the substance of the interview. There isn't that
much play in the Department's rules.

Without Speer's account of his interaction with Rincon, the hearing officer did not
have "some evidence" supporting the disciplinary violation. Quite the contrary. The
officer had no evidence. Without belaboring the point, we, therefore, conclude the
Department violated Rincon's due process rights by finding a disciplinary violation and
imposing punishment. We reverse the district court's dismissal of the 60-1501 petition
and direct the Department to rescind the disciplinary violation and to restore to Rincon
earned good-time credit of 60 days.

Reversed with directions.