Opinion
NO. 2016-CA-000525-MR
05-05-2017
SHAWN STINSON APPELLANT v. R.W. (RICK) ROWKETTE; DUNCAN J. KENDALL; AND KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES
BRIEF FOR APPELLANT: Shawn Stinson Northpoint Training Center Burgin, Kentucky BRIEF FOR APPELLEE: Linda M. Keeton Department of Corrections Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 16-CI-00639 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. MAZE, JUDGE: Shawn Stinson brings this pro se appeal from an order of the Fayette Circuit Court denying his petition for a declaration of rights concerning his conviction in a prison disciplinary matter. He alleges that the Adjustment Officer (AO) erred when he did not review footage taken inside a halfway house; that insufficient evidence existed to establish his guilt; that the AO made insufficient findings of fact; and that the circuit court improperly dismissed the petition before the response time ran. We affirm.
Facts
On July 4, 2015, inmate monitor William Clark observed Stinson "staggering and acting disorderly" in the dining room at the Bluegrass Career Development Center (BCDC), a "halfway house" established for inmates to gain the employment skills necessary to reenter society. Clark removed Stinson from the dining room and took him to the hallway. Stinson was instructed to keep his hands on the counter in the hallway during this exchange. Stinson made a derogatory remark toward inmate monitor, Jacqueline Evans, and removed his hands from the counter. He was again instructed to keep his hands on the counter. As Clark called inmate monitor Tracy Wolfinbarger, Stinson again removed his hands from the counter and approached Clark, prompting a third instruction to keep his hands on the counter. According to a report, Stinson then "approached [Clark] again with more aggression[,] attempting to take his shirt off." The report continues that Clark felt threatened and "had to take him down." A physical altercation ensued.
Wolfinbarger's name is spelled "Wolfinbarger" and "Wolfenbarger" in the record.
Clark called the Kentucky State Police and received no answer. Monitor Jacqueline Evans dialed 911. After the facility was placed on lock down, the Richmond Police Department arrived and placed Stinson in custody. During this process, Stinson spit blood at Clark and the police. Stinson was placed on a stretcher and was taken to the hospital where he tested positive for amphetamines and was found to have a blood alcohol content of .29.
On August 17, 2015, Adjustment Officer (AO) Duncan Kendall presided over a disciplinary hearing. Stinson presented no witnesses during the hearing but denied spitting blood at the staff or bleeding from his mouth. Stinson denied spitting blood at anyone or being intoxicated. Stinson also stated that his chest and neck hurt, and that was why he was taken to the hospital. He also denied ever drinking anything while at BCDC. Adkins, Evans, and Clark testified via telephone and presented a similar account of the incident. Stinson requested that the AO review video footage of the incident; however, the AO denied Stinson's request, stating that he did not have access to the BCDC video system.
The AO found Stinson guilty of "physical action against an employee or non-inmate" pursuant to CPP 15.2(II)(C)(VII)(1). For this the AO sentenced Stinson to a loss of 730 days of non-restorable good time, 180 days disciplinary segregation, and a 180-day restriction on Stinson's phone privileges. The AO also found Stinson guilty of "violent demonstration" pursuant to CPP 15.2(II)(C)(V)(12), sentencing Stinson to a loss of ninety additional days of good time credit. Finally, the AO found Stinson guilty of "unauthorized use of drugs or intoxicants" pursuant to CPP 15.2(II)(C)(IV)(2). As a result, Stinson forfeited 60 days of good time credit, suspended for 180 days. Warden J.W. Rowlette denied Stinson's appeal. On February 23, 2016, Stinson filed a petition for a declaration of rights in Fayette Circuit Court. The circuit court dismissed the petition on March 17, 2016, holding that Stinson's action failed to state a valid claim for relief. This appeal follows.
Kentucky Correctional Policies and Procedures.
Analysis
Stinson makes the following arguments on appeal: 1) the circuit court abused its discretion when it dismissed his petition for a declaration of rights; 2) the AO erred when it refused to review security camera footage from BCDC; 3) "some evidence" did not exist to support his guilt; 4) the AO's findings of fact were insufficient because the AO did not verify the contents of a report that it considered; and 5) the circuit court erred when, at the request of the Justice and Public Safety Cabinet (hereinafter "the Cabinet"), it granted a motion to dismiss before the response time had run.
This argument is subsumed within Stinson's other arguments. Therefore, we decline to address it separately.
First, Stinson alleges that the AO erred when it prevented him from examining the security camera footage in his case, in violation of Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014). In Ramirez, our Supreme Court considered whether an AO may deny an inmate the opportunity to view security camera footage without providing the inmate a justification. The Supreme Court concluded that there was no unlimited right for the inmate to view the footage, although the AO must review the footage and provide a justification for denying the inmate access to that evidence. Ramirez at 919-20. Furthermore, "the justification offered by the AO for denying the inmate access to the documentary evidence must be logically related to preventing undue hazards to institutional safety or correctional goals." Id. at 920 (internal quotation marks omitted). This Court expanded Ramirez's holding to include audio recordings in Mobley v. Payne, 484 S.W.3d 746, 751 (Ky. App. 2016). In Foley v. Haney, 345 S.W.3d 861, 863-64 (Ky. App. 2011), this Court concluded that "a prison disciplinary committee or hearing officer must, at a minimum, state that the evidence provided by a confidential informant has been reviewed and has been found to be reliable. Furthermore, there must be some reasoning supplied to support the determination of reliability."
In the present case, it is undisputed that both video documentary evidence existed and that the AO did not view that footage. The AO stated in his report, however, that the reason he did not review it was because he did not have access to the footage of BCDC.
The Cabinet argues that this Court should find it unnecessary to require the Commonwealth's prisons and AOs to request video footage gathered and maintained by entities or facilities lying outside the prison system. We agree. This is not a case where the AO had video footage available but chose not to review it, as in Ramirez. The AO stated explicitly that he did not have access to the video footage of the incident, and Stinson has presented no evidence to contradict the AO's assertion. No error under Ramirez occurred.
Next, Stinson claims the record lacked "some evidence" supporting his conviction. We disagree. The United States Supreme Court has stated that
the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. . . . Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (citation omitted). "[I]t is the exclusive province of the administrative trier of fact to pass upon the credibility of witnesses, and the weight of the evidence[.]" 500 Associates, Inc. v. Nat. Res. & Envtl. Prot. Cabinet, 204 S.W.3d 121, 132 (Ky. App. 2006) (quoting Bowling v. Natural Res. & Envtl. Prot. Cabinet, 891 S.W.2d 406, 410 (Ky. App. 1995)).
The testimonies of Adkins, Evans, and Clark regarding the incident clearly satisfy the low burden of the "some evidence" standard. As such, Stinson is not entitled to relief on this issue.
Stinson also argues that the no chain of custody existed in his case, but he fails to identify which piece of evidence required additional proof of chain of custody. Presumably, he refers to both the results of the blood alcohol test and the results of his drug test. Because some evidence existed in the record independent of these matters, we need not consider this argument. See Webb v. Sharp, 223 S.W.3d 113, 120-21 (Ky. 2007).
Stinson argues that his findings of fact were insufficient because the AO did not certify his findings. CPP 15.6(II)(D)(3)(d) provides that "[t]he decision shall have specific findings of fact. The findings may be based on facts contained in the employee's report. The findings shall explicitly state which facts were determined to be true if facts in the employee's report are relied upon." Stinson argues that the AO violated this provision when it did not state which facts in the report were relied upon.
This Court has previously held that
[t]he Adjustment Committee's findings ... were "[t]he Committee Believes The Officer's Report To Be Correct...." This incorporates the facts by reference and becomes the written findings of the Adjustment Committee. This procedure (not rewriting the findings) satisfies the requirement[] ... that there be written findings as to the evidence relied on and the reasons for the disciplinary action.Yates v. Fletcher, 120 S.W.3d 728, 731 (Ky. App. 2003). Under Yates, the findings of fact in Stinson's case were sufficient.
Finally, Stinson argues that the circuit court erred when it dismissed his petition for a declaration of rights prior to the time that his response time ran on the Cabinet's motion to dismiss. This Court has previously considered this issue.
Citing CR 12.03, Goben also contends that the court erred in denying him sufficient time to file a response to appellee's motion for judgment on the pleadings. The Commonwealth correctly refutes this argument by noting that the same rule provides that after the pleadings are closed with the filing of a response not containing a counterclaim, any party may file a motion for judgment on the pleadings. No matter outside the pleadings was involved at this juncture. CR 12.03 does not provide the right that the appellant asserts.Goben v. Parker, 88 S.W.3d 432, 433 (Ky. App. 2002) (footnote omitted). As in Goben, the Cabinet attached no outside documentation to its motion to dismiss in this case. Therefore, CR 56.03 is inapplicable. We are aware, and Stinson points out, that Fayette Circuit Court Civil and Criminal Rule 15(A)(2) provides as follows:
Motions to dismiss, motions for summary judgment, motions to strike, and motions under CR 12.02 shall be filed and served upon opposing party and/or attorney(s) at least 10 days prior to motion hour and accompanied by a memorandum of the grounds for the motion with citation of authorities relied upon, but not greater than 25 pages in length, unless permitted by prior order. Failure to file a memorandum with supporting authorities may be grounds for overruling the motion. Any party properly served with a motion accompanied by a memorandum and authorities shall file a response opposing the motion, with citation of supporting authorities, but not greater than 25 pages in length except by leave of Court. Such response shall be filed at least 72 hours prior to the time specified in the notice of hearing of the motion...However, KRS 454.405(1) provides that "[a]t any time, and upon its own motion or on motion of a party, a court may dismiss a civil action brought by an inmate or on behalf of an inmate if satisfied that the action is ... legally without merit or factually frivolous." If an action may be dismissed "[a]t any time" by the circuit court once it determines that the matter is without legal merit, it is not necessary for the response time to run or to provide a hearing. Where the local rules conflict with a statute, they must give way. See, e.g., Delahanty v. Commonwealth, ex rel. Maze, 295 S.W.3d 136, 143 (Ky. App. 2009). Thus, the circuit court did not err by dismissing Stinson's action.
Kentucky Revised Statutes. --------
Conclusion
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Shawn Stinson
Northpoint Training Center
Burgin, Kentucky BRIEF FOR APPELLEE: Linda M. Keeton
Department of Corrections
Frankfort, Kentucky