Opinion
No. 107,305.
2012-08-10
Richard A. MILLER, Appellant, v. Robert SIEDLECKI, Acting Secretary of Social and Rehabilitation Services, et al., Appellees.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge. Richard Arlen Miller, pro se appellant. David W. Davies, litigation attorney, and C. William Ossmann, chief litigation attorney, of SRS Legal Division, for appellees.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.
Richard Arlen Miller, pro se appellant. David W. Davies, litigation attorney, and C. William Ossmann, chief litigation attorney, of SRS Legal Division, for appellees.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
BRUNS, J.
Richard A. Miller appeals the summary dismissal of his K.S.A. 60–1501 petition. Since 2006, Miller has been civilly committed to the custody of the Kansas Department of Social and Rehabilitation Services (SRS) as a sexually violent predator pursuant to the provisions of the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq. On appeal, Miller contends his constitutional rights have been violated because SRS requires that he be physically restrained whenever he leaves grounds of Larned State Hospital. Because we find that Miller's allegations do not rise to the level of shocking and intolerable conduct, we affirm.
Facts
In 2006, Miller was civilly committed to SRS custody as a sexual violent predator under the provisions of the KSVPA, and he was placed in the Sexual Predator Treatment Program (SPTP) at Larned State Hospital. See In re Care & Treatment of Miller, 39 Kan.App.2d 905, 186 P.3d 201 (2008), aff'd289 Kan. 218, 210 P.3d 625 (2009). In 2007, the SPTP apparently enacted risk assessment levels ranging from Level 0 to Level 3. The most restrictive level, which required that residents be placed in handcuffs, waist chains, and leg restraints when away from the SPTP unit, was Level 0. The least restrictive level, which allowed for residents to leave the SPTP unit with no physical restraints, was Level 3.
According to Miller, he eventually reached Level 3 status, allowing him to travel off the grounds of the Larned State Hospital without physical restraints. In 2010 and 2011, however, several residents reportedly escaped from the SPTP. In response, the SPTP enacted a new physical restraint policy. Evidently, Miller is no longer able to travel away from the SPTP unit without physical restraints under the new policy. Unfortunately, the record does not contain documentation regarding the new policy or information regarding the new risk assessment levels.
On April 6, 2011, Miller filed a petition for writ of habeas corpus in the Pawnee County District Court. He alleged that the change in his risk assessment level constituted a wrongful taking of his ability to leave the SPTP without restraints and was intolerable conduct in violation of his constitutional rights. Miller asked the district court to allow him a due process hearing and to restore his previous ability to travel away from the SPTP without physical restraints.
The district court summarily dismissed Miller's petition, finding that he had failed to allege facts demonstrating a constitutionally protected liberty interest. Thereafter, Miller timely filed this appeal.
Analysis
Miller contends he has a protected liberty interest in his risk assessment level and that he was entitled to notice and an opportunity to be heard before his risk assessment status could be changed. He specifically argues that the change in policy requiring SPTP staff to place him in physical restraints whenever he leaves the grounds of Larned State Hospital constitutes a wrongful taking of his liberty interest and a continual mistreatment of a constitutional nature. In response, the State maintains the use of physical restraints under the circumstances does not amount to egregious or outrageous conduct in light of the State's compelling interest in treating sexually violent predators and protecting society from inappropriate behavior.
A person civilly committed under the KSVPA may file a petition for writ of habeas corpus under K.S.A. 60–1501. Summary dismissal is appropriate if, on the face of the petition, it can be established that the petitioner is not entitled to relief or that the uncontrovertible facts that establish no cause for granting the writ exists as a matter of law. On appeal from a summary dismissal, our review is de novo. See Johnson v. State, 289 Kan. 642, 648–49, 215 P.3d 575 (2009); Merryfield v. State, 44 Kan.App.2d 817, 819–20, 241 P.3d 573 (2010).
The State of Kansas has a “compelling interest in treating sexual predators and protecting society from inappropriate behavior.” Williams v. DesLauriers, 38 Kan.App.2d 629, 633, 172 P.3d 42 (2007). Moreover, SRS has the authority to create policies and regulations involving safety concerns related to residents of the SPTP. See K.S.A.2011 Supp. 59–29a22. As noted by the district court, SRS has a statutory right to restrain patients in the SPTP “for security reasons during transport to or from the patient's building, including transport to or from another treatment facility.” See K.S.A.2011 Supp. 59–29a22(b)(6)(B)(ii).
To avoid summary dismissal of a K.S.A. 60–1501 petition, there must be allegations of shocking and intolerable conduct or continuing mistreatment that rises to a constitutional level. See Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412 (1998). The United States Supreme Court has described this standard as governmental behavior that is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847–48 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
“[I]t is necessary to balance ‘the liberty of the individual’ and ‘the demands of an organized society.’ [Citation omitted.] In seeking this balance ... the Court has weighed the individual's interest in liberty against the State's asserted reasons for restraining individual liberty.” Youngberg v. Romeo, 457 U.S. 307, 320, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In determining what restraint is reasonable, deference is normally given to professional judgment operating the treatment program. 457 U.S. at 322–23.
The professional judgment standard set forth in Youngberg—which involves the treatment of a person involuntarily committed for mental disability—is similar to the deference given to prison officials in matters of security. See Lile v. Simmons, 23 Kan.App.2d 1, 3, 929 P.2d 171 (1996) (establishment of security classifications for inmates is an administrative function necessary to the day-to-day management of the volatile environment of a prison, and courts should refrain from reviewing prison authorities' decisions regarding such matters); see also Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (state action does not infringe upon a constitutionally cognizable liberty interest unless the action places an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”).
Here, Miller was civilly committed following a criminal conviction, and he has been adjudged to pose a danger to the health and safety of others. See K.S.A. 59–29a01 (KSVPA was enacted because existing civil commitment procedures were inadequate to address the needs of sexually violent predators and the risks they present to society); K.S.A.2011 Supp. 59–29a02(a) (defining a sexually violent predator as a person convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in repeated acts of sexual violence).
It should be noted that some courts consider a sexually violent predator to be more like a pretrial detainee because both are kept in custody because they are believed to be dangerous to society. See Serna v. Goodno, 567 F.3d 944, 948–49 (8th Cir.2009). Due process requires that pretrial detainees not be punished. See Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Under this standard, whether a condition amounts to punishment turns on whether the condition is imposed for the purpose of punishment or whether it is incident to some legitimate government purpose. 441 U.S. at 535, 538 n. 20;Merryfield v. Schearrer, No. 07–3288–SAC, 2008 WL 4427656, at *3–4 (D.Kan.2008)(unpublished opinion).
The use of physical restraints during transport of a sexually violent predator is not, in and of itself, a violation of the Fourteenth Amendment to the United States Constitution. See Thielman v. Leean, 282 F.3d 478, 482 (7th Cir.2002); Merryfield, 2008 WL 4427656, at *3–5. In Merryfield, a sexually violent predator claimed that his being transported in physical restraints violated his constitutional rights. The Merryfield court, however, determined that under either the professional judgment standard or the punishment analysis for pretrial detainees, the sexually violent predator's arguments failed. Specifically, the Merryfield court noted the petitioner alleged no facts suggesting that professional judgment was not exercised in the development of the SPTP transport policy, nor did he allege facts that suggested the transport policy was contrary to established professional standards. Further, the Merryfield court noted that the petitioner failed to allege facts that would suggest that the use of physical restraints during transport constituted a punishment or that the use of such restraints was not rationally related to a legitimate government purpose. 2008 WL 4427656, at *4–5.
Here, Kansas law clearly provides that physical restraints may be used on patients in the SPTP during transport. K.S.A.2011 Supp. 59–29a22(b)(6)(B)(ii). Although Miller refers to K.S.A.2011 Supp. 59–29a22(c) when he suggests that certain procedures must be followed before the rights of SPTP patients can be taken away, we find that this statutory provision is not applicable in this case. Rather, K.S.A.2011 Supp. 59–29a22(c) specifically provides that the procedures set forth are applicable to “subsections (b)(15) to (b)(21)” of K.S.A.2011 Supp. 59–29a22. None of those subsections involve a right to be free from physical restraint when patients are transported away from the SPTP unit.
Finally, Miller cites Cameron v. Tomes, 783 F.Supp. 1511, 1520, 1526 (D. Mass 1992). But that decision rested heavily on the fact that Cameron had special needs as an amputee. Further, the plaintiff presented evidence that medical professionals had opined that the use of shackles during transportation would be harmful to his mental health. More importantly, the court's decision regarding the use of shackles was subsequently modified in Cameron v. Tomes, 990 F.2d 14, 21 (1st Cir.1993), in which the United States Court of Appeals for the First Circuit held that “[i]n matters of security, as opposed to administrative convenience, the administrators' discretion is at its zenith....” Accordingly, the First Circuit found the treatment center should not be required to suspend specific security measures for outside visits while Cameron's case was being reexamined. 990 F.2d at 21.
Here, we conclude that summary dismissal of Miller's K.S.A. 60–1501 petition was appropriate. Specifically, we find that the policy requiring physical restraints when patients are transported away from the grounds of Larned State Hospital does not amount to shocking and intolerable conduct. This is especially true considering the State's compelling interest in protecting society from sexually violent predators.
Furthermore, we conclude that Miller has failed to show that the use of physical restraints when patients are away from the SPTP unit imposes a significant hardship in relation to the ordinary incidents of his civil confinement under the KSVPA. Moreover, despite the fact Miller has failed to provide this court with the language of the new policy, his suggestion that the new policy was implemented because of prior escapes by sexually violent predators suggests that the policy is reasonably related to a legitimate government objective and is not intended to punish Miller.
Affirmed. GREENE, C.J., concurring:
I write separately only to clarify that I disagree with the district court that Miller had no liberty interest in being free from restraints under these circumstances, but I concur that he was entitled to no relief based on Judge Bruns excellent discussion of applicable law. I simply believe Miller's liberty interests were implicated, but I would decide this case on the rationale of the United States Supreme Court in Youngberg v. Romeo, 457 U.S. 307, 316–24, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), which employs a balancing test as follows:
“ ‘Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’ Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18[, 99 S.Ct. 2100, 60 L.Ed.2d 668] (1979) (POWELL, J., concurring in part and dissenting in part). This interest survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment.
....
“We have established that [respondent] retains liberty interests in safety and freedom from bodily restraint. Yet these interests are not absolute; indeed to some extent they are in conflict. In operating an institution such as [this], there are occasions in which it is necessary for the State to restrain the movement of residents—for example, to protect them as well as others from violence. Similar restraints may also be appropriate in a training program. And an institution cannot protect its residents from all danger of violence if it is to permit them to have any freedom of movement. The question then is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.
....
“In deciding this case, we have weighed those postcommitment interests cognizable as liberty interests under the Due Process Clause of the Fourteenth Amendment against legitimate state interests and in light of the constraints under which most state institutions necessarily operate.
....
“Respondent thus enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests. Such conditions of confinement would comport fully with the purpose of respondent's commitment. Cf. Jackson v. Indiana, 406 U.S. 715, 738[, 92 S.Ct. 1845, 32 L.Ed.2d 435] (1972); see n. 27, supra. In determining whether the State has met its obligations in these respects, decisions made by the appropriate professional are entitled to a presumption of correctness.”
Here, the decision to reimpose physical restraints on Miller after several escape incidents involving other residents seems quite reasonable, and I would balance the interests in precisely the same manner and for the same reasons stated fully by Judge Bruns.