Opinion
NO. 2015-CA-001080-MR
01-06-2017
RICHARD MEREDITH APPELLANT v. CLARK TAYLOR, WARDEN AND DON BOTTOM, WARDEN APPELLEES
BRIEF FOR APPELLANT: Richard Meredith, Pro Se Burgin, Kentucky NO APPELLEE BRIEF FILED
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NOS. 14-CI-00700 AND 14-CI-01053 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND TAYLOR, JUDGES. D. LAMBERT, JUDGE: Richard Meredith (Meredith) brings this pro se appeal from the Franklin Circuit Court. Meredith, an inmate at Northpoint Training Center, had his visitation rights restricted following a prison disciplinary hearing. In an effort to challenge the restriction as a violation of his First and Fourteenth Amendment rights under the U.S. Constitution, Meredith petitioned the circuit court. Because we hold that CPP 16.1 does not create a liberty interest in visitation, that CPP 16.1(K)(4) does not violate Meredith's freedom of association, and that Meredith was not entitled to relief on the merits of his due process claim, we affirm the circuit court's decision to dismiss the petition.
Kentucky Corrections Policies and Procedures
FACTS
Meredith is currently incarcerated at Northpoint Training Center. Meredith's mother, Phyllis Meredith (Phyllis) was an approved visitor at that institution. During an investigation, Correctional Officer Tiffany Bailey (Officer Bailey) admitted that she had smuggled tobacco into the prison for Meredith. Officer Bailey confirmed that she would call Phyllis when Meredith requested tobacco, pick up the tobacco from Phyllis, and deliver the tobacco to Meredith. Each time that Officer Bailey did so, Phyllis paid her $400. Meredith was charged with "[p]ursuing or developing a relationship that is unrelated to correctional activities with a non-inmate" pursuant to CPP 15.2 (II)(C)(IV)(21).
The "relationship ... unrelated to correctional activities" apparently was the conspiracy to smuggle contraband.
On July 22, 2013, a hearing was held over the matter. Meredith was found guilty of the violation, and was sentenced to 45 days of disciplinary segregation. Meredith appealed the decision to Warden Clark Taylor (Warden Taylor), arguing that 1) he was denied his right to call witnesses because he was not permitted to call Officer Bailey during his hearing; 2) he was not provided any evidence used against him; 3) his mother's visitation should not have been restricted; and 4) insufficient evidence existed in the record to support his conviction. On August 20, 2013, Warden Taylor denied Meredith's appeal.
Meredith then filed a petition for declaration of rights in Franklin Circuit Court on June 3, 2014. On June 29, 2015 the circuit court entered an order denying Meredith's petition, holding that Meredith did not have a claim under either the First or Fourteenth Amendments. This appeal followed.
ANALYSIS
As a preliminary matter, we note that the appellees have chosen not to file an appellee brief in this case. Instead, they filed a statement expressing their intention not to file a brief, believing that they adequately addressed the issues presented in this appeal in their motion to dismiss in the circuit court below. We apply the penalties under Kentucky Rule of Civil Procedure (CR) 76.12(8)(c) at our discretion. Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). We may "(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." CR 76.12(8)(c). Though we elect not to impose any penalty upon the appellees in the present case, we strongly suggest that the best practice is to file an appellee brief, as the failure to do so exposes appellees to the penalties in CR 76.12(8)(c).
On appeal, Meredith argues that he had a protected liberty interest in the restriction of his visitation rights, enabling him to bring a due process claim under the Fourteenth Amendment. He also argues that the restriction of his visitation rights violated his rights to free association under the First Amendment. For the following reasons, Meredith was not deprived of his constitutional rights.
I. Fourteenth Amendment Due Process Claim
Procedural due process in the prison disciplinary context requires: "(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). These due process requirements are generally met "if some evidence supports the decision by the prison disciplinary board." Id. at 455.
The only punishment levied upon Meredith as a result of his conviction was disciplinary segregation. This Court has previously held that fifteen days of disciplinary segregation did not, by itself, create a protected liberty interest. Marksberry v. Chandler, 126 S.W.3d 747, 751 (Ky. App. 2003). Regardless, Meredith appears to argue that he has a protected liberty interest in visitation, which is created through CPP 16.1. The United States Supreme Court previously considered whether inmates have a protected liberty interest in visitation in Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454 (1989). After noting that "[r]espondents do not argue—nor can it seriously be contended, in light of our prior cases—that an inmate's interest in unfettered visitation is guaranteed directly by the Due Process Clause," Id. at 460, the Court stated that "state law may create enforceable liberty interests in the prison setting." Id. at 461. The Court eventually concluded that the regulations in that case did not create a protected liberty interest in visitation, stating as follows:
The regulations and procedures at issue in this case do provide certain "substantive predicates" to guide the decisionmaker. The state procedures provide that a visitor "may be excluded" when, inter alia, officials find reasonable grounds to believe that the "visitor's presence in the institution would constitute a clear and probable danger to the institution's security or interfere with [its] orderly operation." Among the more specific reasons listed for denying visitation are the visitor's connection to the inmate's criminal behavior, the visitor's past disruptive behavior or refusal to submit to a search or show proper identification, and the visitor's being under the influence of alcohol or drugs. The reformatory procedures are nearly identical, and include a prohibition on a visit from a former reformatory inmate, without the prior approval of the warden. These regulations and procedures contain standards to be applied by a staff member in determining whether to refer a situation to the duty officer for resolution, and require the staff member to notify the duty officer if the staff member feels that a visitor should not be allowed admittance. The same "substantive predicates" undoubtedly are intended to guide the duty officer's discretion in making the ultimate decision.
The regulations at issue here, however, lack the requisite relevant mandatory language. They stop short of requiring that a particular result is to be reached upon a finding that the substantive predicates are met. The Reformatory Procedures Memorandum begins with the caveat that "administrative staff reserves the right to allow or disallow visits," and goes on to note that "it is the policy" of the reformatory "to respect the right of inmates to have visits." This language is not mandatory. Visitors may be excluded if they fall within one of the
described categories, but they need not be. Nor need visitors fall within one of the described categories in order to be excluded. The overall effect of the regulations is not such that an inmate can reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions. Or, to state it differently, the regulations are not worded in such a way that an inmate could reasonably expect to enforce them against the prison officials.Id. at 463-65 (citations and footnotes omitted).
Meredith points to several portions of CPP 16.1 which he contends create a liberty interest. There are other provisions of CPP 16.1 that are relevant to this consideration, however, and we will consider those provisions first. CPP 16.1(II)(c)(1)(a)-(b) provides that "[t]he Warden may allow each inmate the opportunity to visit a minimum of eight (8) hours per month as permitted or restricted by this policy. Visiting limitations and restriction of lengths of visits shall be established to avoid overcrowding. Any visitor may be barred for security reasons" (emphasis added). Furthermore, under CPP 16.1(II)(c)(2),
[t]he Warden shall establish consistent procedures as to the maximum number of people, the number of visiting hours per month, and the number of visits per visitor that an inmate may receive based on space allocation, staff resources, and the existence of a threat to security and order of the institution.Based on these provisions in CPP 16.1(II)(c), it is clear that inmates do not have a protected a liberty interest in visitation under the CPP as "the regulations are not worded in such a way that an inmate could reasonably expect to enforce them against the prison officials." Thompson, 490 U.S. at 465, 109 S. Ct. at 1911, 104 L. Ed. 2d 506 (footnote omitted).
The regulations cited by Meredith do not alter this conclusion. CPP 16.1(II)(D)(1) provides:
Each institution shall maintain an approved visitation list for all inmates.Under CPP 16.1(II)(D)(5), "[a]n individual shall not be allowed to visit an inmate unless his name appears on the approved visitation list." CPP 16.1(II)(G)(3)-(4) further provides as follows:
An inmate may request visitation from any immediate family, as verified by the Presentence and Postsentence Investigation Report or other verified source. In addition to immediate family, an inmate may request visitation from three (3) additional adults and one (1) clergy . . . .
An inmate found guilty of a Category IV(2) disciplinary report shall be allowed visitation on a restricted schedule or in a non-contact area for a period of six (6) months from the time of the Adjustment Committee hearing. The maximum security facility shall impose non-contact visitation for one (1) year.And finally, CPP 16.1(K)(4)(c) states that "[a]n individual involved in the following rule violations shall not be approved as a visitor or have visiting privileges reinstated . . . [including] an employee or volunteer who developed a relationship with an inmate that was unrelated to correctional activities."
A subsequent conviction of a Category IV(2) or Category VI(15) disciplinary report shall result in non-contact visiting for a period of one (1) year per conviction. These visiting restrictions shall run consecutively.
Here, CPP 16.1(II)(D)(1) merely applies to visitation lists, and not to the likelihood that an inmate will receive visitation. CPP 16.1(II)(D)(5) similarly applies to visitation lists, as it prohibits visitors who are not on the approved visitation lists. CPP 16.1(II)(G)(3)-(4) directly precludes visitation for those convicted of certain offenses, and CPP 16.1(II)(K)(4) precludes visitation for others involved in certain institutional offenses.
Meredith's most compelling argument in favor of CPP 16.1 creating a protected liberty interest is found in CPP 16.1(II)(B), which provides that "[e]ach Warden shall establish visiting times." Even though this provision mandates all wardens to establish visiting times, it does not alone require wardens to give inmates visitation. Rather, it only requires set visiting times for inmates who are otherwise entitled to visitation.
Because the regulations cited by Meredith in no way create an expectation that inmates will receive visitation, and thus fail to show that he has a protected liberty interest, his due process claim must fail. Moreover, even if we were to consider Meredith's due process claim on the merits, he would not have been successful. For example, Meredith asserted that because he was not convicted of a violation of an offense under CPP 16.1(II)(G)(3)-(4), he should not have been subject to the visitation restriction regarding his mother. While it is true that Meredith was not convicted of any violation under CPP 16.1(II)(G)(3)-(4), CPP 16.1(II)(K)(4), which applies to "individual[s]" and not to "inmate[s]" like CPP 16.1(II)(G)(3)-(4), operates independently of CPP 16.1(II)(G)(3)-(4) and allows the prison to ban those who are involved in certain rule violations. Since it was Meredith's mother who had her visitation privileges suspended under CPP 16.1(II)(K)(4), this restriction was not a penalty against Meredith through the prison disciplinary process. Furthermore, although Meredith asserted that he was not properly provided with notice of his CPP 15.2(II)(C)(IV)(21) charge, he clearly was. His disciplinary report form includes his signature on July 3, 2013, and his hearing took place on July 22, 2013. This notice is more than sufficient than the 24-hour notice provision required under CPP 15.6(II)(D)(2)(b). Lastly, despite his claims that tobacco was not considered "dangerous contraband" at the time his visiting privileges were restricted, and that his conviction thus constituted an "ex post facto" violation, Meredith was not charged with smuggling dangerous contraband. He was charged with "[p]ursuing or developing a relationship that is unrelated to correctional activities with a non-inmate" pursuant to CPP 15.2(II)(C)(IV)(21). Meredith's mother was the one restricted under CPP 16.1(K)(4), which includes "smuggling or attempting to smuggle dangerous contraband into an institution[,]" not Meredith. Accordingly, it is far more likely that Meredith's mother's visitation was restricted under CPP 16.1(K)(4)(c). And if not, Meredith's mother's was still banned because she "developed a relationship with an inmate that was unrelated to correctional activities[,]" another ground for restricting visitation under CPP 16.1(K)(4).
Indeed, Meredith's disciplinary report reveals that Meredith's visitation privileges were not restricted as a result of his conviction.
II. First Amendment Freedom of Association Claim
Meredith has raised his First Amendment rights to challenge the prison's decision to ban his mother from visiting him. Again, CPP 16.1(K)(4) provides, in full, that
[a]n individual involved in the following rule violations shall not be approved as a visitor or have visiting privileges reinstated:Because Meredith's mother was implicated in his smuggling scheme, she is not permitted to visit Meredith in prison.
a. smuggling or attempting to smuggle dangerous contraband into an institution;
b. assisting or aiding in the planning of an escape or attempted escape; or
c. an employee or volunteer who developed a relationship with an inmate that was unrelated to correctional activities.
As the United States Supreme Court has stated, "freedom of association is among the rights least compatible with incarceration." Overton v. Bazzetta, 539 U.S. 126, 131 (2003). In Overton, the Supreme Court considered whether an inmate's freedom of association was violated by a policy stating that "[p]risoners who commit multiple substance-abuse violations are not permitted to receive any visitors except attorneys and members of the clergy. An inmate subject to this restriction may apply for reinstatement of visitation privileges after two years. Reinstatement is within the warden's discretion." Id. at 130. We believe this issue to be directly analogous to the one in the present case, because both policies involve limiting visitation due to some misconduct, either on behalf of an inmate or on behalf of the visitor.
The U.S. Supreme Court also considered freedom of association rights in light of the test established in Turner v. Safley, 482 U.S. 78, 89 (1987). The applicable Turner factors are
whether the regulation has a "valid, rational connection" to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are "ready alternatives" to the regulation.Overton, 539 U.S. at 132 (citing Turner, 482 U.S. at 89-91).
With respect to the first Turner factor, the Supreme Court held that
the restriction on visitation for inmates with two substance-abuse violations, a bar which may be removed after two years, serves the legitimate goal of deterring the use of drugs and alcohol within the prisons. Drug smuggling and drug use in prison are intractable problems. Withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose. In this regard we note that numerous other States have implemented similar restrictions on visitation privileges to control and deter substance-abuse violations.539 U.S. at 134 (citations omitted). Here, CPP 16.1(K)(4) has a valid, rational connection to a legitimate government interest for a similar reason. The regulation was designed to prevent smuggling, escape and improper relationships between inmates and non-correctional employees/volunteers. These interests are clearly related to prison management, and therefore the first Turner factor is satisfied.
For the second Turner factor, the Supreme Court held that alternative means were available for inmates to exercise their rights, stating that "[a]lthough [communicating with prohibited visitors] is not available to inmates barred all visitation after two violations, they and other inmates may communicate with persons outside the prison by letter and telephone." Id. at 135. Here, this reasoning is also applicable. Meredith is apparently not prohibited from other forms of communication with his mother, and so alternative means are open to Meredith to exercise his freedom of association.
For the third Turner factor, Overton noted that "[a]ccommodating respondents demands would cause a significant reallocation of the prison system's financial resources and would impair the ability of corrections officers to protect all who are inside a prison's walls. When such consequences are present, we are particularly deferential to prison administrators' regulatory judgments." Id. (quotation marks omitted). Again, allowing visitation in the instances prohibited in CPP 16.1(K)(4) would certainly impair prison security. The third Turner factor is thus satisfied.
Considering the final Turner factor, the Supreme Court stated that though "the duration of the restriction for inmates with substance-abuse violations could be shortened or . . . it could be applied only for the most serious violations . . . these alternatives do not go so far toward accommodating the asserted right with so little cost to penological goals." Id. at 136. We agree with the Court in this instance and "defer to [KDOC's] judgment that a longer restriction better serves its interest in preventing the criminal activity that can result from these interactions." Id.
Because CPP 16.1(K)(4) passes the test established in Overton, supra, Meredith's claim under the First Amendment also must fail.
CONCLUSION
In sum, we hold that the circuit court did not err when it dismissed Meredith's petition for a declaration of rights, as Meredith did not have a claim under either the First or the Fourteenth Amendments to the United States Constitution.
The Franklin Circuit Court's order denying Meredith's petition is therefore affirmed.
KRAMER, CHIEF JUDGE, CONCURS AND FILES SEPARATE OPINION.
KRAMER, CHIEF JUDGE: I concur with the majority opinion but write separately to also set forth my disapproval of the appellees' failure to file a brief in this case. As the majority opinion writes, this Court has broad discretion to apply penalties under CR 76.12 for the failure to file a brief. In this case, the appellees filed a "Statement Regarding Appellees' Brief" with the Court, stating that "The position of the Appellees is fully stated in its Response and Motion to Dismiss in the underlying action; therefore, the Appellees will not be filing a brief in this matter unless directed by the Court." Directing this Court to the appellees' position in a motion to dismiss at the trial court level wholly fails to comply with the briefing requirements of CR 76.12. Appellees should heed the majority opinion's caution that the "best practice" is to file a brief and that the failure to do so "exposes appellees to the penalties in CR 76.12 (8)(c)" unless the Court has directed the appellees to not file a brief. Appellees' attention is directed to such cases as Rubin v. Schmitt, NO. 2015-CA-001520-ME, 2016 WL 5863103 (Ky. App. Oct. 7, 2016) ("Schmitt chose not to file an appellate brief. In exercising our discretion as an appellate court, under the facts of this case, we choose to 'regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.' CR 76.12(8)(c)(iii). Thus, we remand this matter to the trial court for an order vacating the DVO."); Gonzalez v. Commonwealth of Kentucky, NO. 2015-CA-000202-MR, 2016 WL 5956993 (Ky. App. Oct. 14, 2016) ("As a preliminary matter, we note that the counsel for the General Assembly has chosen not to file an appellee brief in this case....In this instance, we choose to accept Gonzalez's statements of facts and issues as correct."); Moore v. Moore, NO. 2015-CA-001823-ME, 2016 WL 5485214 (Ky. App. Sept. 30, 2016) ("We assume that [appellee] elected not to file a brief because she also disagreed with the result below.").
These unpublished cases are cited only for illustrative purposes, not as binding precedent. See CR 76.28(4)(c). --------
TAYLOR, JUDGE CONCURS; JOINS IN CHIEF JUDGE KRAMER'S CONCURRING OPINION AND FURTHER FILES SEPARATE OPINION.
TAYLOR, JUDGE: I concur with the majority and Chief Judge Kramer's concurring opinion. I write separately only to state that serious consideration was given to reversal pursuant to CR 76.12(8) and note that the Justice and Public Safety Cabinet's "Statement Regarding Appellee's Brief" is not authorized under the Civil Rules. Further use of such a statement in other cases will likely result in reversal without consideration of the merits of the case. CR 76.12(8)(c). BRIEF FOR APPELLANT: Richard Meredith, Pro Se
Burgin, Kentucky NO APPELLEE BRIEF FILED