Young v. Heimgartner

1

NOT DESIGNATED FOR PUBLICATION

No. 117,731


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DONALD YOUNG,
Appellant,

v.

JAMES HEIMGARTNER, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed April 6, 2018.
Affirmed.

Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.

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

Before SCHROEDER, P.J., GREEN, J., and STUTZMAN, S.J.

PER CURIAM: Donald Young, an inmate with the Kansas Department of
Corrections (KDOC), received a disciplinary report alleging that he committed lewd acts.
After the disciplinary hearing, the hearing officer, Kenneth McGuire, found Young
guilty. Young filed a petition for a writ of habeas corpus under K.S.A. 60-1501 in the
trial court. He alleged multiple due process violations. The trial court summarily
dismissed the petition for failing to state a cognizable claim. Young appealed and this
court reversed the trial court's dismissal and remanded the case for further proceedings.

2

Following an evidentiary hearing, the trial court ordered the disciplinary case be
reopened for the limited purpose of allowing Young to call a witness. After hearing the
new testimony, McGuire found Young guilty. He returned his findings to the trial court
and respondents moved to dismiss. The trial court dismissed the petition.

On February 13, 2015, Young, an inmate at the El Dorado Correctional Facility
(EDCF), was written up for violating K.A.R. 44-12-315—Lewd Acts. Behavioral mental
health provider, K. Clouser, alleged that while she was conducting a group with Young
and other inmates, she witnessed Young massaging his penis with his hand. He was
between two and three feet from Clouser. She walked out of the room and contacted an
officer to remove Young from the group.

At the disciplinary hearing on February 19, 2015, Young testified that he did not
intentionally expose himself. His jumpsuit was torn and his penis fell through the tear.
When he felt a breeze on his crotch, he jumped up to situate himself. Before he could
explain the situation, an officer escorted him from the room. After providing his version
of the incident, Young cross-examined Clouser. She testified that she was not aware that
Young's jumpsuit was ripped and stated that it was not pulled down during the incident.
Clouser stated that she saw Young with his penis in his hand, moving his hand back and
forth. McGuire found Young guilty of violating K.A.R. 44-12-315—Lewd Acts.
McGuire sanctioned Young to 30 days in disciplinary segregation and fined him $15. The
EDCF warden, James Heimgartner, approved the sanctions the same day.

Young appealed the decision to the Secretary of Corrections, Ray Roberts. Young
argued that there was insufficient evidence to support the violation. He further asserted
that officers violated his constitutional due process rights in their failure to provide
adequate written notice, denial of his right to call witnesses, failure to conduct an
impartial hearing, and failure to provide an adequate statement of the factual findings to
support the disciplinary action. Roberts approved the disciplinary decision, finding that
3

the hearing officer substantially complied with the department and facility standards and
procedures, and the hearing officer based his decision on some evidence.

Young filed a K.S.A. 2014 Supp. 60-1501 petition for writ of habeas corpus in the
trial court, alleging the same violations as he did in his disciplinary appeal. In the
petition, Young named McGuire as the respondent. The trial court notified Young that he
named the wrong party and granted him additional time to file an amended petition.
Young submitted an amended petition naming Heimgartner and Roberts (hereinafter,
collectively referred to as KDOC) as parties. The court dismissed McGuire from the
lawsuit.

KDOC answered the petition, denying all claims. It contended that "some
evidence" supported McGuire's decision, which is sufficient to find a violation had
occurred. KDOC then reviewed each of the due process violations Young alleged,
concluding that no due process violations had occurred. It further asked the court to
dismiss the petition with prejudice because Young had failed to state a claim upon which
relief may be granted. KDOC attached a printout of Young's offender information on the
Kansas Adult Supervised Population Electronic Repository (KASPER) web page,
showing his current status, convictions, physical location history, and disciplinary report
history.

The trial court summarily dismissed the petition, stating the following:
"Disciplinary segregation, in itself does not implicate constitutional rights. The Court
sees no violation of protected liberty rights. There is nothing atypical about petitioner's
confinement. Some evidence supports conviction. [This] Court does not retry the facts.
Petitioner fails to state a cognizable claim. No constitutional violations are
demonstrated." Young moved for reconsideration and the trial court denied the motion
for reasons stated in the original dismissal.

4

Young timely appealed the same issues. In Young v. Heimgartner, No. 114,603,
2016 WL 1169516 (Kan. App. 2016) (unpublished opinion), this court reviewed each
alleged due process violation and reversed and remanded the case for further
proceedings. This court stated that

"summary dismissal was appropriate of Young's claims regarding inadequate written
notice of the charge, timing discrepancies in the written report, and the inadequacy of the
hearing officer's report. However, we find that there remain unresolved factual issues
regarding Young's claims he was denied the opportunity to call witnesses on his behalf
and he was not accorded a fair and impartial hearing due to interference by the hearing
officer during his examination of the witness against him." Young, 2016 WL 1169516, at
*5.

This court further determined that the trial court prematurely found that the evidence was
sufficient. Moreover, this court determined that until the trial court resolved the alleged
due process violations, it could not determine whether the evidence was sufficient.
Young, 2016 WL 1169516, at *6.

The trial court held an evidentiary hearing for Young's petition. The hearing began
with the parties listening to the audio recording of the disciplinary hearing. Young,
however, testified that the recording did not cover the entire hearing. He explained that
the disciplinary hearings are conducted over the phone. Usually the hearing officer
speaks with the inmate, who provides his version of the incident and the officer
determines relevancy of the inmate's proposed evidence or witnesses. For any witnesses,
the parties terminate the call, the hearing officer calls the witness, and the inmate calls
back to be connected into the hearing.

Young contends that he spoke to McGuire, providing his version of the incident
and discussing the motion to dismiss, before the call that was played in the court
occurred. In his motion to dismiss, Young claimed that he never received witness forms
5

for the disciplinary hearing. Then in the hearing, McGuire denied Young's request to call
witnesses due to his failure to submit witness forms. McGuire failed to document the
discussion or any reasons for denying Young's request to call witnesses. McGuire further
testified that he did not remember any conversation about Young's desire to call
witnesses but was certain that he would have documented it had such a conversation
occurred.

Young claimed that he had asked to call correctional officer Greenwood and
inmate Kyle Cole. He stated that Cole was also in the group room when the incident
occurred and was an eyewitness. He wanted to call Greenwood to testify as to the
condition of his jumpsuit. She had issued Young the torn jumpsuit and offered to vouch
for him if any issues arose because of the tear. Nevertheless, the condition of the jumpsuit
was not in question. Because Greenwood did not witness the incident, the court found
that her testimony was irrelevant. The court further determined that Cole's testimony was
relevant because he could testify to what he saw during the incident.

The second issue addressed was whether Young received an impartial trial. This
issue revolves around four questions that Young asked Clouser, which McGuire
determined were irrelevant before Clouser could answer. The four questions were
substantially the following: (1) "Did you see me take my penis out of my jumpsuit?"; (2)
"Was my penis erect?"; (3) "How long did you actually observe me?"; and (4) "Is it true
that I apologized?". McGuire did not permit Young to finish the final question. Young
contends that each of the questions was relevant to his defense because Clouser had
glanced at him only momentarily before leaving the room to notify an officer. As a result,
Young asserts that she misinterpreted the situation.

On the other hand, KDOC contends that the recording of the hearing makes it
clear that Clouser was certain about what she saw and there was no misinterpretation.
6

KDOC further claimed that Young had the opportunity to ask Clouser sufficient
questions but nothing he could have asked would have changed her story.

The trial court found that McGuire did not interfere with Young's ability to cross-
examine Clouser. It determined that the questions of whether he had an erection and how
long she observed him were irrelevant. The court determined that the question of whether
Clouser saw Young take his penis out of his jumpsuit was relevant.

The trial court remanded the case to EDCF to reopen the disciplinary hearing for
the limited purpose of hearing Cole's testimony. It ordered McGuire to issue a new
decision after considering the new evidence. The court retained jurisdiction over the
matter pending the review of McGuire's new hearing report.

KDOC later submitted the new hearing report to the trial court, along with a
motion to dismiss. In the new report, McGuire found Young guilty of violating K.A.R.
44-12-315 by a preponderance of the evidence. He determined that Clouser was more
credible than Young and Cole. As a result, he affirmed the previous conviction and the
sanction previously assessed as an order. The trial court determined that McGuire had
made the appropriate findings of fact and that the hearing report reflected that he
considered all testimony in making his credibility determination. The court also noted
that Young had filed an appeal to Heimgartner. Nevertheless, because the court had
retained jurisdiction, it considered Young's appeal as an objection to the new findings.
The sole complaint in the objection was McGuire's credibility determination. The court
determined that Young's due process rights had been satisfied. It determined that the
record contained "some evidence" to support the disciplinary action, that McGuire's
findings were not arbitrary, and that there was no indication of shocking or intolerable
conduct by prison officials or in the punishment imposed. The trial court dismissed the
K.S.A. 60-1501 petition for failure to state a cognizable claim.

7

Did the Trial Court Err in Determining that Young's Due Process Rights Were Not
Violated?

Standard of Review

An appellate court reviews a trial court's decision on a K.S.A. 60-1501 petition to
determine whether the trial court's factual findings are supported by substantial
competent evidence and are sufficient to support the court's conclusions of law. Rice v.
State, 278 Kan. 309, 320, 95 P.3d 994 (2004). Substantial evidence is such legal and
relevant evidence that a reasonable person could accept as being sufficient to support a
conclusion. The trial court's conclusions of law are subject to de novo review. 278 Kan.
at 320.

The sole issue in this appeal is whether the trial court erred when it concluded that
McGuire did not violate Young's due process right to an impartial trial by preventing
Clouser from answering three questions on cross-examination. This court previously
remanded to the trial court to make findings regarding Young's due process right to an
impartial hearing. Young, 2016 WL 1169516, at *4. According to K.S.A. 2017 Supp. 60-
401(b), evidence is relevant if it has a propensity to prove a material fact. Young
contends that the questions of whether Clouser observed Young take his penis out of his
jumpsuit, if his penis was erect, and how long she observed him were all relevant to his
contention that Clouser misunderstood the situation. He contends that each question has a
tendency to prove the material facts of his defense against the allegations in the
disciplinary report.

Nevertheless, if McGuire had allowed Clouser to answer the previously mentioned
questions, it would not have influenced the outcome of the hearing. Because Clouser
testified that she saw Young rubbing his penis, it was entirely irrelevant whether she saw
Young take his penis out of his jumpsuit or whether his penis was erect or how long she
8

watched Young. Suppose the answer "no" is given to the question whether Young's penis
was erect and to the question whether Clouser saw Young take his penis out of his
jumpsuit. What of it? The point is that Clouser could have answered "no" to each of these
questions, and it still would have made no difference concerning the alleged falsity of her
testimony about seeing Young rubbing his penis. Clouser's testimony may be false. But
its falsity would not follow from negative answers to these questions. That is, the answers
to these questions are irrelevant to show the falsity of Clouser's testimony. If the answers
to these questions are irrelevant, then of course they are not evidence. Thus, Young's
argument would be an instance of what is called the fallacy of irrelevant evidence.

Affirmed.