Speed v. Norwood

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NOT DESIGNATED FOR PUBLICATION

No. 119,379

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STACEY SPEED,
Appellant,

v

JOE NORWOOD, Secretary of Corrections,
Appellee.


MEMORANDUM OPINION

Appeal from Ellsworth District Court; SCOTT E. MCPHERSON, judge. Opinion filed December 14,
2018. Affirmed.

Bradley T. Steen, of Law Office of B. Truman Steen, LLC, of Ellsworth, for appellant.

Robert E. Wasinger, legal counsel, of Department of Corrections, for appellee.

Before ARNOLD-BURGER, C.J., LEBEN and BRUNS, JJ.

PER CURIAM: Prison inmates have some due-process rights when prison officials
enter disciplinary sanctions against them that take away either liberty or property
interests. So Stacey Speed filed a court action challenging the administrative fine of $70
and loss of good-time credits entered as a sanction against him for violating prison rules.

The district court found no violation of Speed's due-process rights and denied
Speed's claim. Speed has now appealed to our court.

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FACTUAL AND PROCEDURAL BACKGROUND

We will begin with a review of the proceedings in the state prison system and in the
district court. Because Speed makes claims that he wasn't allowed to call a necessary
witness and that the evidence didn't support conviction on the administrative charges
against him, we must start with the charges and the evidence presented.

In 2017, Paul Cory, a correctional officer at the Larned Correctional Mental Health
Facility, cited Speed in a disciplinary report for violating several Kansas Department of
Corrections (KDOC) regulations. Cory alleged that Speed (1) failed to register personal
property as required by an administrative regulation, K.A.R. 44-12-201; (2) misused the
KDOC telephone system, violating another regulation, K.A.R. 44-12-211 (2017 Supp.); (3)
was present in an area without authorization, violating K.A.R. 44-12-503(a); (4) acted as an
accessory to an offense, violating K.A.R. 44-12-1101; and (5) had dangerous contraband,
prohibited by K.A.R. 44-12-901.

According to the report, Cory had been monitoring Speed's telephone
conversations with Janet Flamik, during which they spoke about picking up money and
where Flamik should go to pick up money. Cory also described how surveillance videos
showed:
 Inmate Charles Townsend "jumping the West Unit fence and running west of
the facility to pick up a bag of contraband that was dropped by Janet Flamik";
 an inmate entering the West Unit with a package dropped by Flamik;
 Speed "standing at the West Unit entrance appearing to distract the officer
while the contraband entered";
 Speed walking with two other inmates—Charles Townsend and Livingston
(whose first name isn't included in the appellate record)—"to the end of the
2nd floor south" and then showing "the locker at the end of 2nd floor south
tipping up and going back down"; and
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 Flamik "driving on the restricted access road behind [the facility] to drop the
packages" on two different occasions.
Finally, the report said "[a] large amount of contraband was discovered under the same
locker [that was being tipped back and forth]," and that Speed had two pairs of sunglasses
and a $100 bill in his possession.

Speed asked for a disciplinary hearing at which evidence would be presented and
pleaded not guilty. At the hearing, Cory testified about the allegations in his report.
Another officer, Tania Zubia, testified about gathering Speed's property during the
investigation.

After Cory and Zubia testified, the hearing officer gave Speed the chance to make
statements and cross-examine any witnesses. Speed argued that he wasn't properly
charged with failing to register his sunglasses because "'[he] can't be charged with
something [he] can't buy.'" When the hearing officer asked Speed where he got the
sunglasses, Speed replied, "'I suppose I don't know.'"

Then Speed addressed the charge for misusing KDOC telephones. According to the
hearing report, Speed argued that his phone calls to Flamik "were for the intention to pick
up money for the Islamic fund and to assist Ms. Flamik with her lawful business of selling
Essential Oils." After that, Speed addressed the allegations that Flamik was dropping
packages of contraband for Speed. He asked Cory several questions about how he
identified Flamik as the person dropping the packages. Cory described the videos of a Ford
Focus dropping packages at a place Speed had pointed to on a map he sent to Flamik.
Speed said that he wasn't responsible for Flamik's actions when she wasn't visiting him in
prison.

When Speed addressed the allegations of helping distract an officer so another inmate
could bring in packages of contraband, Speed argued that he wasn't distracting the officer,
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but that the officer called Speed because he needed to speak to Speed. Then Speed explained
how inmate Livingston was operating a store at the prison and stored his goods underneath
the locker being tipped up and down in the video.

After Speed made his statements, the hearing officer asked Cory to produce any
evidence that supported his allegations against Speed. Cory summarized what the evidence,
including each video or audio recording, contained. The hearing officer listened to the
recordings and watched the surveillance videos, which he also summarized in his report.

The hearing officer found that it was more likely than not that Speed had committed
the alleged violations. Speed was fined a total of $80; he also received 90 days of restricted
privileges, 30 days of disciplinary segregation, and lost 90 days of good-time credit.

Speed appealed to the Secretary of Corrections, who denied the appeal, finding
that the prison officials had substantially complied with facility procedures and that some
evidence supported the conviction. Speed then filed a habeas corpus petition
under K.S.A. 60-1501 alleging due-process violations because he didn't receive proper
notice of his charges and there wasn't enough evidence to support his convictions, among
other claims. In response, the Secretary moved to dismiss, arguing Speed's claims were
meritless.

The district court held a hearing on Speed's petition, during which Speed appeared
with his retained attorney. At the hearing, Speed's attorney presented his argument and
submitted a letter to Flamik from the Larned Correctional Mental Health Facility as an
exhibit. After the Secretary presented its argument in support of its motion to dismiss, Speed
responded to the Secretary's position.

In its order, the district court declined to rule on Speed's charge for being present in a
restricted area because the Secretary's attorney said that KDOC was going to dismiss that
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allegation and return the $10 monetary sanction associated with it to Speed. After explaining
that "its review in this matter [was] limited to the record of the Disciplinary Hearing and is
not a de novo review," the court found that Speed was afforded due process based on the
"some evidence" standard. Without providing detailed findings about the issues Speed raised
in his petition, the court granted the Secretary's motion to dismiss, effectively denying relief
to Speed.

ANALYSIS

Under K.S.A. 60-1501, an inmate confined in a Kansas prison may bring a writ of
habeas corpus in the county where he or she is confined. Johnson v. State, 289 Kan. 642,
648, 215 P.3d 575 (2009). On appeal, we review a district court's decision in a habeas case
to determine whether the district court's factual findings are supported by substantial
evidence and are enough to support the court's conclusions of law. We review the district
court's legal conclusions independently, with no required deference to the district
court. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).

I. Speed Was Not Deprived Due Process During the Disciplinary Proceedings.

Speed claims he was denied due process because of a series of alleged errors
committed by the hearing officer. Inmates do have due-process rights when deprived of a
constitutionally protected liberty or property interest. Hardaway v. Larned Correctional
Facility, 44 Kan. App. 2d 504, 504-05, 238 P.3d 328 (2010). Here, the disciplinary
sanction deprived Speed of property, through the $70 of fines. It also deprived Speed of
liberty, through his loss of 90 days of credit for good-time served. See Sauls v. McKune, 45
Kan. App. 2d 915, 920, 260 P.3d 95 (2011). So Speed had the right to court review of the
process given to him in these proceedings. 45 Kan. App. 2d at 920.

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But the level of process due an inmate differs from that in a criminal trial or a civil
lawsuit: the inmate is entitled to only a minimal level of due process. Superintendent v.
Hill, 472 U.S. 445, 455-56, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985); Frost v. McKune, 44
Kan. App. 2d 661, 662, 239 P.3d 900 (2010). The minimal procedures to which an inmate is
entitled include written notice of the charges to enable the inmate to prepare a defense, an
impartial hearing, the opportunity to call witnesses and present documentary evidence, and a
written statement from the hearing officer on the findings and the reasons for the decision.
Swafford v. McKune, 46 Kan. App. 2d 325, 329, 263 P.3d 791 (2011).

A. Speed Received Adequate Notice of His Charges.

Speed first argues that he was denied due process because he didn't have sufficient
notice of his charges to be able to prepare a defense. He specifically claims he was
deprived adequate notice for several reasons, including that
 the charges in the disciplinary report included video footage from six different
dates, but of those dates only April 2, 2017, was alleged in the report;
 the disciplinary report didn't include the name of the corrections officer who
witnessed Speed standing "'at the West Unit entrance appearing to distract the
officer while the contraband entered'";
 the disciplinary report charging Speed with being an accessory didn't allege
who the principal to the offense was;
 "the facts alleged in the report do not indicate what property he failed to
register";
 the disciplinary report didn't state what specific illegal activity took place with
regards to his "telephones" allegation; and
 the disciplinary report didn't say which confiscated item was "'dangerous
contraband.'"

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But all that's required for notice of charges to be adequate in KDOC disciplinary
proceedings is that the prisoner receive advance notice of the charges against him, not a
detailed recitation of all the underlying evidence. K.A.R. 44-13-101(a); see Wolff v.
McDonnell, 418 U.S. 539, 563-64, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Lynn v. Pryor,
No. 117,068, 2018 WL 2374862, at *8 (Kan. App. 2018) (unpublished opinion), rev. denied
August 31, 2018. Indeed, Speed's disciplinary report does just that; it shows that Speed was
charged with violating five different regulations and it summarizes the facts that support the
allegations against Speed. Likewise, the disciplinary report explains what the officers
purportedly observed on the audio and video recordings. We conclude, then, that Speed's
disciplinary report gave him adequate notice of the charges so he could prepare a defense.
See Swafford, 46 Kan. App. 2d at 329.

B. Any Error in Denying Speed's Request for a Witness Was Harmless.

Speed also claims he was denied due process because the hearing officer didn't let
Speed call two witnesses: the first, inmate Charles Townsend; and second, an unnamed
staff member. In ruling on an inmate's request to call witnesses, a hearing officer may
balance the inmate's need for a witness against prison interests. But prison officials bear a
burden of persuasion to show that there is a reasonable basis for overriding the inmate's right
to call witnesses. Sauls, 45 Kan. App. 2d at 920; see K.A.R. 44-13-405a.

The hearing officer first denied Speed's request that inmate Townsend testify in his
defense. Speed didn't raise this issue before the district court, and typically a party can't
raise an issue for the first time on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375,
403, 266 P.3d 516 (2011). There are exceptions to this rule, including to serve the ends of
justice or to prevent denial of fundamental rights. State v. Phillips, 299 Kan. 479, 493, 325
P.3d 1095 (2014).

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Speed argues that this court should decide this issue under this exception. We don't
find Speed's argument persuasive. The hearing officer denied that request and cited "the
[facility's] need for the prompt, efficient, and effective resolution of the disciplinary case
with accurate and complete fact-finding consistent with the level of process required by
law for facility disciplinary cases." K.A.R. 44-13-405a(a)(13). A hearing officer has
"broad discretion in permitting or denying the witness request." K.A.R. 44-13-405a(b). And
here, Speed hasn't shown that inmate Townsend was important to Speed's defense. Speed
simply argues in his brief that Townsend's testimony "would have allowed 'complete fact-
finding.'" We find no denial of due process in the failure to bring inmate Townsend to the
hearing, which was mainly about Speed's conduct not Townsend's.

The hearing officer also denied Speed's request that an unnamed staff member testify
on his behalf at the hearing. Speed presumably wanted to call this witness to testify in his
defense about the charge that he violated K.A.R. 44-12-503(a) for being in a restricted area
without authorization. The hearing officer denied Speed's request because he "need[ed]
specific name(s) to allow scheduling for hearing."

In its motion to dismiss, the Secretary conceded that "the officer could have been
readily identified by [the correctional facility's] staff." But the Secretary argued that "even if
[Speed] had the requisite permission to be on the 2nd floor south, he would not have been
given permission regarding his activities captured on video." Then, at the hearing on Speed's
motion, the Secretary dismissed Speed's charge for violating K.A.R. 44-12-503(a) because
there wasn't enough evidence to support a conviction of that charge. Since the charge related
to this witness' potential testimony ultimately was dismissed, even if the hearing officer
should've allowed Speed to call the witness, any error in failing to do so was harmless. See
Sauls, 45 Kan. App. 2d at 921.

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C. The Hearing Officer's Findings Were Sufficient.

Next, Speed argues that he was deprived due process because the disciplinary
officer's findings were insufficient and vague. He says the hearing officer's decision was
inadequate because "the findings of the hearing officer would be the equivalent of a judge
concluding at a bench trial and saying 'based on everything presented I find this
defendant guilty.'"

Due process does require "a written statement of the findings by the factfinders as
to the evidence and the reasons for the decision." In re Habeas Corpus Application of
Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001); see also Wolff, 418 U.S. at 563
(explaining that due process requires "a written statement of the factfinders as to the
evidence relied upon and the reasons for the disciplinary action taken"). Likewise, KDOC
regulations also require a written decision "that upholds, modifies, or denies the proposed
action. The decision shall be concisely written and shall express the hearing officer's
findings of fact and reasoning for taking the action decided upon." K.A.R. 44-6-130(b).

This is precisely what the hearing officer in Speed's case did. After the disciplinary
hearing was complete, the hearing officer issued an eight-page "disposition of
disciplinary case." In that disposition, the hearing officer summarized the evidence the
parties had presented during the hearing. Then, at the end, the officer explained that he
had relied on "video evidence, physical evidence, testimony of [Officer] Zubia, testimony
of [Officer] Cory, and Offender Speed's own testimony" to find that it was more likely
than not that Speed was guilty of the alleged violations.

The hearing officer's decision satisfies the due-process requirements noted in
caselaw and the KDOC regulations. We find no due-process violation regarding the
adequacy of the hearing officer's written decision.

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D. An Impartial Hearing Officer Presided over Speed's Proceedings.

Speed's final due-process claim is that the hearing officer was not impartial because
he didn't follow KDOC procedures. It's true that due process requires that an inmate who
has been charged with a disciplinary violation receive an impartial hearing. See In re
Habeas Corpus Application of Pierpoint, 271 Kan. at 627; Washington v. Roberts, 37 Kan.
App. 2d 237, 247, 152 P.3d 660 (2007). But Speed has not shown that his hearing officer
lacked impartiality.

First, there's no indication that the hearing officer failed to follow KDOC
procedures. Contrary to Speed's claims, the notice of charges complied with KDOC
regulations. Likewise, Speed had the chance to call witnesses in his defense. But even if
the hearing officer did fail to follow regulations in some respects, prison officials have
"flexibility in executing internal prison policies and procedures which are designed to
preserve internal order and discipline," so "[t]he mere fact that a hearing officer in a
prison discipline case has not followed [KDOC] procedural regulations does not of itself
violate fundamental fairness that rises to an unconstitutional level." Anderson v.
McKune, 23 Kan. App. 2d 803, 811, 937 P.2d 16 (1997); Reed v. Cline, No. 118,699,
2018 WL 4939360, at *3 (Kan. App. 2018) (unpublished opinion) (citing Anderson),
petition for rev. filed November 6, 2018.

Other than his own conclusory statements, Speed simply provides no support for
his position that he was denied the right to a hearing by an impartial hearing officer.
Speed has failed to show a due-process violation based on the partiality of the hearing
officer.

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II. There Was Sufficient Evidence to Support Speed's Convictions.

Speed's next argument on appeal is that the Secretary didn't present enough
evidence to support his convictions. Given the need to maintain prison security,
less evidence is needed to find that an inmate has violated a prison rule than to find that a
person has committed a crime. Frost, 44 Kan. App. 2d at 664. The prison hearing officer
determines whether it is more likely than not that the prisoner has violated a prison
regulation, and a court may reverse that decision only when there is not even "some
evidence" supporting it. 44 Kan. App. 2d at 664. In other words, due-process
requirements are satisfied if at least "some evidence" supports the prison's disciplinary
decision. Superintendent v. Hill, 472 U.S. at 455-56; Miller v. McKune, 38 Kan. App. 2d
810, Syl. ¶ 3, 174 P.3d 891 (2006).

A. Failing to Register Personal Property

Speed first claims there wasn't sufficient evidence to support his conviction under
K.A.R. 44-12-201, "Registration and use of personal property," for having two pairs of
unregistered sunglasses. Under K.A.R. 44-12-201(a), each inmate is required "to make
certain that any items of personal property in the inmate's possession as designated by
department of corrections internal management policy and procedure or orders of the
warden are properly registered." Likewise, "[e]ach inmate shall be required, upon
demand, to produce any personal property registered in the inmate's name or issued to the
inmate, unless previously reported lost according to proper procedure." K.A.R. 44-12-
201(a).

Speed argues that "the evidence could not be considered sufficient because as
charged, the items were indicated that they could not be obtained in the KDOC." He doesn't
deny that his sunglasses weren't properly registered. As the Secretary points out in his
appellate brief, "inmates are allowed sunglasses under Internal Management Policy and
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Procedures 12-120." It follows, then, that Speed had to register the sunglasses in his
possession. Speed also doesn't cite any caselaw or administrative regulation to support his
position that an inmate can only register property that can be purchased in a Department of
Corrections facility. He had two pairs of sunglasses; he didn't register them. That's sufficient
evidence.

B. Misuse of the Telephone

Speed also claims that there wasn't sufficient evidence to support his conviction
under K.A.R. 44-12-211(6) (2017 Supp.) for "us[ing] the telephone in furtherance of any
illegal activity[.]" He argues that "the evidence showed that Mr. Speed and Ms. Flamik
spoke about money for Mr. Speed's Islamic fund, and Ms. Flamik's essential oils
business"—not for illegal activities. Speed also says "[t]he summary of audio recordings
of conversations purportedly between Mr. Speed and Ms. Flamik do not indicate how the
persons' voices were identified, and do not indicate clearly that the recorded
conversations were made over a phone."

Here, there was ample evidence showing that Speed used the facility's phone system
for illegal purposes, including the hearing officer's summaries of several audio conversations
between Speed and Flamik:
 A March 8, 2017 conversation "with code words 'I'll see you early in the
morning' from Janet Flamik," followed by the arrival of a contraband package
the next day.
 A conversation during which Speed asked Flamik for an immediate favor and
to "'run an errand for him and that she's been there a "couple of times before."'"
The report notes that Flamik was at first confused during the conversation, but
that she understood what Speed was requesting after Speed explained his
request in different words.
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 A conversation that took place when Flamik was in her car and explained to
Speed that a security vehicle was in "'her place.'" Flamik then told Speed when
the car had moved.
Although the hearing officer's written findings don't show that Speed and Flamik
explicitly communicated plans to have Flamik bring him contraband, there certainly was
"some" evidence that Speed was using the phones for illegal purposes. That's all that due
process requires.

C. Accessory to an Offense

Speed also challenges the sufficiency of the evidence to convict him under K.A.R.
44-12-1101 of acting as an accessory to the offenses of another. He argues that "there
cannot be sufficient evidence of this violation as it is inadequately charged to the point
that it fails to state a claim." Alternatively, Speed says there's insufficient evidence
because "only Inmate Townsend is shown to be carrying anything from outside the
fence. . . . No evidence was shown that Mr. Speed carried anything in."

Kansas regulations define "accessory to an offense" as

"[a]iding an offender or one charged with an offense shall mean knowingly harboring,
concealing, or aiding any inmate who has committed an offense, or one who has been
charged with an offense, with intent that the inmate will avoid or escape from apprehension,
disciplinary hearing conviction, or punishment for the offense." K.A.R. 44-12-1101(c).

Here, there's some evidence to support Speed's conviction of this allegation. For
example, the hearing officer's written findings say Video 2 showed inmate Townsend
"running and jumping the fence the same day a contraband package was coming in[,]"
which contained the same type of contraband that Flamik "would drop." Based on these
findings—especially given the rest of the evidence presented at the hearing—one could
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reasonably believe that Speed and Townsend worked together to bring contraband into
the correctional facility, an offense under K.A.R. 44-12-902 or K.A.R. 44-12-903. This
same conclusion could be supported by hearing officer's written findings about Video 9,
which shows Speed and two other inmates together and presumably tipping a locker off
the ground. This conclusion makes even more sense when considering how, at the
hearing, Speed testified that "[inmate] Livingston was operating a store. And he keeps his
Debbie's and crunch right underneath the locker . . . ."

In short, although the disciplinary report didn't designate for whom Speed was acting
as an accessory, there is still plenty of evidence to show that Speed committed this offense.

D. Dangerous Contraband

Speed's final sufficiency-of-the-evidence claim has to do with his conviction for
possessing dangerous contraband in violation of K.A.R. 44-12-901. He argues that
K.A.R. 44-12-901 "does not define currency as dangerous contraband." Alternatively, he
says that "because the currency was not alleged to have been altered in a way to make it
dangerous, and no allegation was made that the currency was capable of causing a
dangerous situation," the evidence can't support a conviction for that offense.

During the disciplinary hearing, the hearing officer asked Officer Cory "about the
hundred dollar bill" that Cory found in Speed's possession. Speed never denied that the
bill belonged to him. The hearing officer presumably concluded there was sufficient
evidence to support a dangerous contraband charge.

Under K.A.R. 44-12-901(a)(1), one of the three definitions of "dangerous
contraband" is "[a]ny item . . . that is . . . capable or likely to produce or precipitate
dangerous situations or conflict, and that is not issued by the department of corrections or
the facilities, sold through the canteen, or specifically authorized or permitted by order of
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the secretary . . . ." And under K.A.R. 44-2-103(b)(10), an inmate may not have
"currency, in the form of paper, checks, money orders, coins, stamps or similar
instruments with monetary value."

Looking at these definitions, the $100 bill in Speed's possession meets the
definition of "dangerous contraband." Speed wasn't permitted to have cash as an inmate.
Indeed, the only thing he could do with the money was participate in other activities
prohibited by KDOC regulations. It's not difficult to see how having cash to use in
prohibited activities could precipitate conflict in a prison and thus be dangerous. We
conclude that there was sufficient evidence to support Speed's dangerous-contraband
conviction.

III. The District Court Did Not Err by Dismissing Speed's Claim that He Was Improperly
Permanently Denied Visits from His Spouse.

Next, Speed claims that the district court erred by dismissing his claim that he was
improperly denied visits from Flamik, who he says is his spouse. He argues that his
K.S.A. 60-1501 motion is appropriate to address this complaint because KDOC deprived
him of a constitutional right—his liberty interest—by not allowing Flamik visit him in
jail.

Speed's argument is based on the United States Supreme Court's decision in Kentucky
Dept. of Corrections v. Thompson, 490 U.S. 454, 462, 109 S. Ct. 1904, 104 L. Ed. 2d 506
(1989), which holds that a State may create a liberty interest by "provid[ing]
decisionmaking criteria which serve to limit discretion." In other words, a State may
create a liberty interest if a regulation contains "'explicitly mandatory language,' i.e.,
specific directives to the decisionmaker that if the regulations' substantive predicates are
present, a particular outcome must follow[.]" 490 U.S. at 463.

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Speed claims that K.A.R. 44-7-104—the KDOC regulation governing inmate
visitation—"contains mandatory language suggesting that there is a due process right in
visitation for KDOC inmates" because it mandates that "the following procedures shall be
observed by the facility in the administration of visits." He says that one of the mandatory
regulations is that if a person's visitation privileges are suspended, "[t]he initial length of a
suspension imposed . . . shall not exceed one year," but "shall be subject to review by the
warden and may be extended for successive periods of no more than one year each." K.A.R.
44-7-104(a)(8)(A)-(B).

But Speed overlooks the part of the regulation that says "[a]ny visitor's visiting
privileges may be suspended if the visitor violates any visitation policy and
procedure . . . while in the facility . . . ." K.A.R. 44-7-104(a)(8). (Emphasis added.) Likewise,
"any person may be permanently barred from entering on the grounds of any KDOC facility"
if certain conditions are met. K.A.R. 44-7-104(a)(9)(A)(v) (citing K.S.A. 21-3826, which
criminalizes trafficking contraband in a correctional facility). The context in which the word
"may" is nearly identical to that in Thompson.

The prison regulation in Thompson said "[c]ertain visitors . . . may be excluded" for
many reasons, including when "[t]he visitor's presence in the institution would . . . interfere
with the orderly operation of the institution" or when "[t]he visitor is directly related to the
inmate's criminal behavior." Thompson, 490 U.S. at 456 n.1. The Thompson Court held that
although the regulation "contain[s] standards [that] . . . undoubtedly are intended to guide the
duty officer's discretion in making the ultimate decision" of whether a visitor should be
allowed admittance, it also found that the regulation "lack[ed] the requisite relevant
mandatory language." 490 U.S. at 464. The Court explained the language wasn't mandatory
because "the regulations are not worded in such a way that an inmate could reasonably
expect to enforce them against prison officials." 490 U.S. at 465.

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Indeed, K.A.R. 44-7-104 has the same purpose of the regulation in Thompson—to
give officials the discretion to decide whether a person may visit an inmate in a correctional
facility. Thus, we conclude that the language in K.A.R. 44-7-104, like that in Thompson, is
not mandatory and doesn't create a liberty interest. Since Speed's liberty interest was not
implicated when the KDOC banned Flamik from visiting Speed for the rest of his
incarceration, the district court properly dismissed this claim.

IV. The District Court Did Not Consider Facts Outside the Pleadings.

As his final claim, Speed argues that the district court erred by considering facts
outside the pleadings in its decision to grant the Secretary's motion to dismiss.
Specifically, Speed challenges the district court's statement that it was "going to take [the
Secretary] at his word, that this particular finding of this disciplinary officer is more
extensive perhaps than others." Speed doesn't explain how the district court considered
the Secretary's statement in its decision to dismiss his motion. Nor does he say why the
Secretary's statement was prejudicial. We have a duty to review this case on appeal
independently—and we have, indeed, independently reviewed whether the hearing
officer's written decision was adequate. We do not find that the district court improperly
relied on anything outside the record; even if it did, we have independently reviewed the
same issue without doing so.

The district court's judgment is affirmed.