Opinion
NO. 2015-CA-000707-MR
05-06-2016
TRAVIS JORDAN APPELLANT v. STEVE HANEY, WARDEN, BLACKBURN CORRECTIONAL COMPLEX, COMMONWEALTH OF KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES
BRIEF FOR APPELLANT: Travis Jordan, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Allison R. Brown Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 14-CI-04375 OPINION
AFFIRMING
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BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND JONES, JUDGES. CLAYTON, JUDGE: Travis Jordan appeals the Fayette Circuit Court order granting summary judgment and dismissing his petition for declaration of rights. After careful review, we affirm.
On April 8, 2014, officers at Blackburn Correctional Complex used drug-sniffing dogs to search for contraband in Jordan's housing unit. The dogs indicated that something was in Jordan's footlocker. Officers then discovered tobacco wrapped in a brown-paper towel in the footlocker. After an investigation, Jordan was charged with "use or possession of tobacco products in unauthorized areas" and "smuggling of contraband items into, out of, or within the institution."
Next, on April 10, 2014, Deputy Warden Brandy Harm interviewed Jordan about allegations by him that a corrections officer had made inappropriate comments about Jordan's genitalia during a strip search. Because of Jordan's allegations, a "prison rape elimination act" investigation was begun. It failed to uncover any evidence supporting Jordan's allegations. Thereafter, it was determined that Jordan's accusation against the correction officer was false. As a result, Jordan was charged with "tampering with physical evidence or hindering an investigation."
A disciplinary hearing on all three charges was held on April 21, 2014. Jordan was found guilty of and penalized with forfeiture of 30 days of good time for possession of tobacco products; forfeiture of 60 days of good time for smuggling contraband; and, forfeiture of 90 days for hindering an investigation. Jordan appealed the disciplinary charges to the Warden on April 22, 2014. The Warden entered a decision on May 20, 2014, concurring with the adjustment officer's decision.
Jordan attempted to file a second appeal, on May 22, 2014. He maintains that this appeal was actually a request for reconsideration under Corrections Policy and Procedures (CPP) 15.6(II)(F)(8). Nonetheless, this request was filed more than 15 days after the disciplinary hearing, and hence, outside the requisite time period for appealing the findings of a disciplinary hearing. The Warden replied on May 27, 2014, and denied Jordan's attempted second appeal.
Originally, Jordan filed his petition for declaration of rights on June 24, 2014 with Franklin Circuit Court. On December 1, 2014, the case was transferred to Fayette Circuit Court. After the Department of Corrections filed a motion for summary judgment, the trial court on April 16, 2015, granted the summary judgment, denied Jordan's petition for declaratory judgment, and dismissed the appeal. Jordan now appeals this order.
On appeal, Kentucky courts review summary judgment by ascertaining whether there are genuine issues of material fact, and, if not, whether the movant is entitled to judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56 and Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). However, prison disciplinary proceedings are administrative, rather than criminal, and Jordan's petition arises in the context of a petition for declaratory judgment under Kentucky Revised Statutes (KRS) 418.040.
In these circumstances, summary judgment for the Corrections Department is proper if the prisoner's petition and supporting materials, construed in light of the entire agency record, do not raise specific, genuine issues of material fact sufficient to overcome the presumption of agency propriety, and the Department is entitled to judgment as a matter of law. Smith v. O'Dea, 939 S.W.2d 353, 356 (Ky. App. 1997).
With this standard in mind, we turn to the case at bar. On appeal, Jordan proffers that the trial court erred when it failed to grant his petition for a declaration of rights and granted Appellees' summary judgment for failure to exhaust administrative remedies; that the trial court erred when it dismissed his claim of retaliation; and, that the trial court erred when it determined that he received procedural due process at the adjustment hearing. The Department of Corrections responds that Jordan failed to comply with CR 76.12(4), and requests that his brief be stricken; that the trial court's grant of summary judgment should be affirmed; and, that the trial court correctly ruled that he failed to establish the elements necessary for a retaliation claim.
We begin our analysis of the Department of Corrections' assertion that Jordan failed to comply with CR 76.12(4), and as such, its suggestion that our Court strike Jordan's brief. Bolstering the argument, Appellees point out that because this case involves facts and arguments not originally presented to the trial court, it is even more important that we strike the brief for failure to follow the civil rules. Jordan answers that he did reference and preserve the arguments. Furthermore, he maintains that pro se litigants' pleadings are to be construed liberally and held to a less stringent standard.
CR 76.12(4)(c)(iv) mandates that an Appellant's statement of the case contain a "chronological summary of the facts and procedural events necessary to an understanding of the issues presented by appeal, with ample references to the specific pages of the record . . . supporting each of the statements narrated in the summary." The Department points out that Jordan did not reference the trial court record. Additionally, CR 76.12(4)(c)(v) requires that an Appellant's brief "contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner."
When a party fails to comply with the briefing requirements of CR 76.12, this Court has multiple options. It may ignore the deficiency and review the issue raised, strike the brief or refuse to consider an issue, or review the issue for manifest injustice only. Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990).
In the case at hand, the record is merely 131 pages and the disciplinary decisions, with their appeals to the Warden, are included. While it is accurate that appellate courts have the power to strike briefs or review under the manifest injustice standard, based on our discretion, we choose to review this case notwithstanding procedural flaws. Informing our decision is the fact that Jordan is a pro se Appellant and parameters of the standard of review in prison discipline cases. Moreover, the Appellees' concerns about the possible necessity of additional findings should be assuaged since, at this level of oversight, we do not make findings nor review findings that are not in the record. Commonwealth v. Parrish, 471 S.W.3d 694, 699 (Ky. 2015).
Another issue on appeal is whether Jordan exhausted his administrative remedies. The trial court held that Jordan failed to exhaust his administrative appeals as required under KRS 454.415 on the following claims: double jeopardy occurred; evidentiary chain of custody was improper; the disciplinary reports were not concise and clear; the officers' reports were not provided to him prior to the disciplinary hearing; he was unable to consult with his legal aide 24 hours prior to hearing; and, the area where the tobacco was found was not secure. Therefore, the trial court held that these issues could not be heard by it and dismissed the claims.
KRS 454.415(1) states "(1) No action shall be brought by or on behalf of an inmate, with respect to: (a) An inmate disciplinary proceeding . . . until administrative remedies as set forth in the policies and procedures of the Department of Corrections, county jail, or other local or regional correctional facility are exhausted." CPP 15.6(II)(F)(3) provides that an inmate has fifteen (15) days after the decision to detail in writing the reasons for the appeal to the Warden. Thus, the appeal filed on May 22, 2014, was outside the time limit for the filing of appeals.
But significantly, if an inmate does not raise an issue before the administrative body, he or she is precluded from raising that issue for judicial review of the agency's actions. Our analysis indicates that the issues for which the trial court held that Jordan had not exhausted his administrative remedies were actually never brought before the adjustment officer and the committee. As stated in O'Dea v. Clark, 883 S.W.2d 888, 892 (Ky. App. 1994), "[t]he failure to raise an issue before an administrative body precludes a litigant from asserting that issue in an action for judicial review of the agency's action." Thus, rather than a failure to exhaust administrative remedies because they were not appealed, they were in fact never brought before the prison disciplinary committee. Accordingly, they are precluded from judicial review.
In addition, Jordan's claim that the second appeal was actually a motion for reconsideration is not persuasive. While CPP 15.6(II)(F)(8) grants the Warden authority at any time to order a disciplinary report to be vacated upon justification and allows it to be re-investigated, re-heard, or both, it also states that "[t]his is at the Warden's level only and shall not create any new time for additional appeals." Consequently, if it was a valid motion for reconsideration, it would have been based on the issues in the original appeal. Second, the Warden denied it. Third, it was made well after the 15 day time period for an appeal. Finally, and most importantly, these issues were never brought before an administrative body. Therefore, there is no administrative record for review. Summary judgment on these issues was proper.
However, the issues in the April 22, 2014 appeal to the Warden, which include Jordan's questioning of his findings of guilt on the possession of tobacco products, smuggling of contraband, and the hindering of an investigation, appropriately exhausted administrative remedies and are subject to judicial review. In the denial of the appeal, the Warden noted that due process was in order, and the decisions were supported by the evidence. The trial court granted summary judgment on these issues and concurred with the Warden.
We begin our analysis by noting that while inmates retain rights under the Due Process Clause of the United States and Kentucky Constitutions, a defendant in a prison disciplinary proceeding is not entitled to "the full panoply of rights due a defendant" in a criminal proceeding. See Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); O'Dea, 939 S.W.2d at 357-58.
Initially, we address Jordan's contention that insufficient evidence was provided to support the allegations of possession and smuggling of tobacco. Under O'Dea, for a court to uphold the decision of a prison disciplinary board, the decision must be supported by "some evidence." O'Dea, 939 S.W.2d at 355. Further, the evidence must at least be reliable. Byerly v. Ashley, 825 S.W.2d 286, 288 (Ky. App. 1991). The "some evidence" standard of review was ascertained to provide courts with a sufficient check upon adjustment committee fact-finding and adopted by our Courts. O'Dea, 939 S.W.2d at 356 And when reviewing a prison disciplinary committee's findings, the reviewing court must determine whether there is "some evidence" appearing in the record to support that finding. Id. at 356-57 (citing Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)).
In the case at bar, some evidence existed because tobacco was found in Jordan's footlocker. Regarding evidence of Jordan's hindering of an investigation, some evidence was given in the deputy warden's report that Jordan's false allegations against a corrections officer hindered the PREA investigation. These findings were clearly listed in the adjustment officer's written findings as well as the reasons for the findings of guilt. Accordingly, the requirement for some evidence was satisfied.
The due process required in a prison disciplinary proceeding "is no more than notice of the charges, a reasonable opportunity to be heard, and a brief written finding suitable for judicial review." Id. at 357 (citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). We agree with the trial court's decision that Jordan received advance notice of the charges against him, an opportunity to present a defense, and was given a written statement by the adjustment officer that detailed the evidence against him and the reasons for the disciplinary action. And the findings created a record that allows for meaningful review. All requirements were met. Therefore, contrary to Jordan's contentions, he received procedural due process as required in a prison disciplinary context.
Lastly, we address Jordan's first amendment retaliation claim, which the trial court held he failed to establish. To state a claim alleging retaliation for exercising a constitutional right, a plaintiff must show that (1) he engaged in protected conduct; (2) the defendant took an adverse action against him "that would deter a person of ordinary firmness from continuing to engage in that conduct"; and (3) that the adverse action was taken (at least in part) because of the protected conduct. Thomas v. Eby, 481 F.3d 434, 440 (6th Cir. 2007)(quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc). Jordan maintains that the deputy warden's written report declaring that he hindered an investigation was an adverse action taken against him for filing the grievance.
An inmate has a first amendment right to file a grievance if it is non-frivolous. Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001). In his grievance report, Jordan accused Corrections Officer Christiason of improper statements. But during the interview with the deputy warden, he identified Corrections Officer Hester as the staff member who made improper statements. Given that Jordan misstated the name of the corrections officer who allegedly made improper statements, his claim of retaliation is frivolous, and thus, will not support a claim of retaliation.
Jordan asserts arguments in his brief explaining the reason for his original accusation against the wrong corrections officer. Nonetheless, he did not make these arguments during the pendency of the action but only now asserts them. Because these arguments were not on the record, that is, not preserved for our review, we do not have the ability to address them. Jordan cannot now argue that the trial court ignored a material fact that was never communicated to it. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 152 (Ky. 1977).
CONCLUSION
The decision of the trial court granting the Department of Corrections' summary judgment, denying Jordan's petition for declaratory judgment, and dismissing the appeal was proper. We affirm the Fayette Circuit Court's decision.
ALL CONCUR. BRIEF FOR APPELLANT: Travis Jordan, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Allison R. Brown
Frankfort, Kentucky