Opinion
No. 106,916.
2012-08-3
Patrick B. GROSSMAN, Appellant, v. KANSAS DEPARTMENT OF CORRECTIONS, Appellee.
Appeal from Reno District Court; Joseph L. McCarville III, Judge. Patrick B. Grossman, appellant pro se. Jon D. Graves, of Kansas Department of Corrections, for appellee.
Appeal from Reno District Court; Joseph L. McCarville III, Judge.
Patrick B. Grossman, appellant pro se. Jon D. Graves, of Kansas Department of Corrections, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Patrick Grossman, an inmate in the State prison in Hutchinson, appeals the Reno County District Court's dismissal of his petition for a writ of habeas corpus challenging discipline imposed on him for violations of the facility's rules. We find no error in the district court's decision and affirm.
In late January 2011, Grossman complained of dizziness while working in the prison's food service area. He was allowed to leave work to report to the medical clinic. Anna True, a clinic staff member, contacted the physician who had prescribed Elavil, an antidepressant, for Grossman. The physician discontinued the drug until he could see Grossman at the prison in about 2 weeks. True then told Grossman to return to his cell for the remainder of the day.
Three days later, Grossman told the lieutenant overseeing prisoners working in food service that he felt anxious and upset, probably as a result of going off the Elavil. The lieutenant allowed Grossman to return to his cell for the balance of the work detail that day. Grossman also went to the medical clinic because of his symptoms but was told nothing could be done until the physician returned to the prison. Grossman filed a grievance protesting the lack of attention to his condition on the part of both food service managers and medical staff personnel.
On February 3, 2011, Grossman was required to report to the food service area for work. When he arrived there, Grossman protested that he was not well and had been given a medical release from work—a “lay-in” order in the facility's parlance. Correction Officer Gibson (whose first name is not readily apparent from the record) checked and determined that Grossman had not received a lay-in order. Gibson so informed Grossman and told him he would be expected to work as scheduled. Grossman protested to Gibson and Rhonda Ford, the food services manager, to no avail. In their presence, he then stated: “You people will be responsible for what happens. I have issues with this place. I'm telling you ... something physical is going to happen if I work here to staff or inmates.” Grossman also told Gibson and Ford that he would be forced to follow up with his grievance or words to that effect. Lieutenant Wilson, who also waltzes through the record without an obviously discernible first name, overheard at least part of the exchange and ordered that Grossman be written up for disciplinary infractions.
Grossman was alleged to have disobeyed an order, engaged in insubordination or disrespect, and to have behaved in a threatening or intimidating manner, thereby violating, respectively, K.A.R. 44–12–304, K.A.R. 44–12–305, and K.A.R. 44–12–306. In due course, an administrative hearing was held. We will discuss the hearing in more detail as it pertains to the particular points Grossman has raised on appeal. Grossman was found guilty of insubordination or disrespect for which he received 14 days of disciplinary segregation. He was also found guilty of threatening or intimidating conduct for which he received 14 days of disciplinary segregation, 30 days of restricted privileges, and a $20 fine. The hearing officer found Grossman not guilty of disobeying an order.
Grossman exhausted his administrative remedies and filed his petition in the district court, as provided in K.S.A. 60–1501, challenging the hearing, the findings, and the punishment. Following a hearing, the district court denied Grossman's petition. Grossman has timely appealed that decision.
Grossman contends he was denied due process, as guaranteed in the Fourteenth Amendment to the United States Constitution, because of how the disciplinary hearing was conducted.
At the outset, we note that the courts have held that placement of an inmate in administrative or disciplinary segregation typically does not, in and of itself, give rise to a freestanding due process claim. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (placement of inmate in restrictive solitary confinement as discipline failed to state a constitutional claim for denial of due process because the conditions did not amount to an “atypical and significant hardship ... in relation to the ordinary incidents of prison life”); Amos v. Nelson, 260 Kan. 652, 666, 923 P.2d 1014 (1996); Anderson v. McKune, 23 Kan.App.2d 803, 807, 937 P.2d 16,rev. denied 262 Kan. 959, cert. denied522 U.S. 958 (1997). As to the violation of K.A.R. 44–12–305 for insubordination or disrespect, Grossman received only time in disciplinary segregation as a punishment, so he has no legal basis for a constitutional due process claim. The violation of K.A.R. 44–12–306 for threatening or intimidating conduct is another matter. Because Grossman was fined $20 in addition to receiving a restrictive placement, he suffered what would be a cognizable harm for due process purposes. Our review, however, is not really any different as a result. Both guilty findings arose out of the same hearing, and the relevant facts are not materially different.
Grossman bears the burden of proving the due process violations alleged in his petition. Constitutional due process is aimed at providing an opportunity to be heard in a meaningful way at a meaningful time so as to avert the loss of protected property or liberty interests as the result of government action. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ( “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ [Citation omitted.”] ); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (The Due Process Clause “at a minimum” requires that “deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”); State v. King, 288 Kan. 333, 354, 204 P.3d 585 (2009). Due process is an especially flexible concept that must be shaped to the nature of the interest affected and the circumstances of the potential loss. See Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 19, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). Some situations demand a high degree of process or procedural protection, such as a criminal prosecution, while others do not.
In a prison disciplinary proceeding, an inmate's constitutional right to procedural due process entails: (1) written notice of the charges sufficient to permit preparation of a defense; (2) an impartial hearing and hearing officer; (3) an opportunity to call witnesses and to present evidence; and (4) a written statement of the factual findings and reasons for the disciplinary decision. See In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001) (citing Wolff v. McDonnell, 418 U.S. 539, 563–66, 94 S.Ct. 2963, 41 L.Ed.2d 935 [1974] ).
Grossman first complains that he sought to have True testify at the discipline hearing but prison officials blocked that request. An inmate has a due process right to call witnesses so long as their appearances will not materially compromise legitimate penological goals of institutional safety and order. Washington v.. Roberts, 37 Kan.App.2d 237, 243–44, 152 P.3d 660 (2007) (citing Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 85 L.Ed.2d 553 [1985], and Wolff, 418 U.S. at 566). Under K.A.R. 44–13–306, an inmate may secure the presence of witnesses by making a request at least 48 hours before a hearing and, if more than one witness is requested, by providing summaries of anticipated testimony. A hearing officer may deny the request for specified reasons, including irrelevant or immaterial evidence, repetitious or redundant evidence, or legitimate penological concerns listed in K.A .R. 44–13–405a. K.A.R. 44–13–307(b). The hearing officer must document the reason for the denial on the request form or in the disciplinary case record.
Here, Grossman asked that “C.C.S. Staff Anna Turner” be produced as a witness, thus misstating True's last name. Prison officials denied the request on the grounds that no one by that name was employed at the facility. We find that reason to be disingenuous and, thus, legally insufficient. Nothing in the record suggests Grossman's identification could have been construed as applying to some potential witness other than True. A technical misnomer in identifying a witness or a misspelling of his or her name cannot justify a facility's refusal to comply with an otherwise proper request. The prison's position reduces the hearing process to something akin to a parlor game that does not comport with the dictates of constitutional due process.
Nonetheless, a due process breach does not necessarily require reversal of a disciplinary determination if the breach has caused the inmate no actual prejudice. See State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012) (harmless error rule applicable to constitutional lapses in criminal prosecution; the rule, a fortiori, may be applied to an administrative disciplinary proceeding affording an inmate less due process than a criminal defendant would receive at trial). This is such an instance. The record evidence demonstrates that True would have testified that she did not enter a lay-in order for Grossman or otherwise secure for him a medical release from his work duties. Even if True had been made available as a witness, the outcome would have been no different. Grossman, therefore, is entitled to no relief on this point despite the prison's unwarranted refusal to produce True.
Grossman next contends prison officials improperly withheld exculpatory evidence from him in the form of a statement from Ford. For purposes of considering the point, we assume but do not decide that prison officials were required to turn over to Grossman exculpatory evidentiary materials in advance of the disciplinary hearing as a component of his due process rights. Even based on that assumption, Grossman has shown no violation of that right. Ford's statement recounted Grossman's declaration that something physical might happen if he were required to work in the food service area. She also stated Grossman refused to do work when Gibson directed him to do so. Ford characterized Grossman's words and comportment as conveying an intent to intimidate her and Gibson. There was nothing exculpatory about Ford's statement. We find no reason to upend Grossman's discipline because it was not produced to him.
Third, Grossman contends the hearing officer impermissibly favored the prison. Due process requires the hearing officer in prison disciplinary proceedings be impartial. Wolff, 418 U.S. at 570–71;Pierpoint, 271 Kan. at 627;Washington, 37 Kan.App.2d at 247. Grossman argues the hearing officer was not because he sought out testimony from medical clinic supervisor Ackerman, yet another player in this legal drama who appears without a first name. Ackerman testified that Grossman had not been given a work release or lay-in order for medical reasons. Whether Grossman had been excused from work was plainly relevant to the disciplinary charges.
Under K.A.R. 44–13–403(1)(1), a hearing officer may call and question witnesses in an effort to develop “the truth regarding the charges against the inmate.” The hearing officer is, thus, not confined to considering the evidence the parties provide and may independently expand the record, so long as the inmate is present for any additional testimony. In some instances, that may work to an inmate's advantage. It did not here. But the hearing officer's effort to establish clearly one way or the other if Grossman had received a lay-in order does not betray partiality.
We also note that the hearing officer found Grossman not guilty of one of the three disciplinary charges lodged against him. Such a split determination strongly suggests an impartial decisionmaker. See United States v. McMillan, 600 F.3d 434, 453 (5th Cir.2010) (verdict acquitting defendant of some charges indicates jury was not inflamed to convict as result of prosecutor's comments in closing argument). Grossman failed to produce evidence suggesting, let alone proving, otherwise.
Grossman next contends the evidence did not support the hearing officer's findings of guilty. In reviewing those findings in a prison disciplinary proceeding, the court will uphold the hearing officer's ruling if it is supported by “some evidence.” See Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505 (1999) (adopting the “some evidence” standard articulated in Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 [1985] );Anderson, 23 Kan.App.2d at 807–08 (same). The standard is a comparatively relaxed one in which the reviewing court does not weigh evidence or make credibility determinations but, rather, accepts the record in a light favoring the administrative ruling.
An inmate violates K.A.R. 44–12–306—the finding we may properly consider—by “threaten[ing] or intimidate[ing], either directly or indirectly, any person or organization.” The regulation applies to “conditional threats or intimidation.” K.A.R. 44–12–306(c). But the “subjective impression” of the victim “shall not be a factor in proving a violation.” K.A.R. 44–12–306(c). The inmate's actions, therefore, must be objectively threatening or intimidating, meaning a reasonable person of ordinary sensibilities would find them so. That protects an inmate from discipline for otherwise benign conduct that an unduly sensitive individual takes to be threatening or intimidating. By the same token, however, an inmate could be found guilty for impermissible conduct even if the intended target were a particularly thick-skinned corrections officer who sloughed off the behavior without a second thought.
Applying the appropriate standard of review, we find sufficient evidence to support the hearing officer's finding of guilt for Grossman's violation of K.A.R. 44–12–306. Grossman's declaration that “something physical” would happen “to staff or inmates” if he were required to work amounts to a conditional threat, and a reasonable person more than likely would find it to be intimidating. Grossman's remark, especially in the context of his disputing that he should be working, conveys a message that he could or would injure someone if he were required to remain on the job in the food service area. Ford interpreted the words to be an attempt by Grossman to intimidate and threaten his way out of working. Ford's testimony may be taken as her objective assessment of Grossman's conduct rather than her subjective reaction to it.
By way of contrast, Grossman called Corrections Officer (no first name) Ravenstein as a witness to the incident. Rather than asking Ravenstein questions designed to elicit a factual recitation of the events, Grossman effectively sought the officer's subjective reaction—something that is essentially irrelevant under K.A.R. 44–12–306. Grossman asked Ravenstein if he considered Grossman to have been “disrespectful or insubordinate” or to have said “anything threatening.” Ravenstein responded in the negative and said he had not felt threatened. Taking that testimony in Grossman's favor, Ravenstein simply set up a conflict with Ford as to how the incident ought to be viewed. The hearing officer necessarily would have accepted Ford's characterization in finding Grossman guilty. We are in no position to reverse that determination if it is considered a factual finding.
But, as we have indicated, the sounder analysis simply would reject Ravenstein's subjective opinion or reaction to Grossman's conduct as irrelevant. We may conclude the hearing officer so treated the opinion evidence from Ravenstein. Regardless of how Ravenstein's testimony was treated, the record as a whole contains some evidence supporting the hearing officer's finding of guilt on the charged violation of K.A.R. 44–12–306. Grossman, therefore, loses on his challenge to the sufficiency of the evidence, as the district court concluded.
For his final point, Grossman contends he was written up not because he had done anything wrong but in retaliation for the grievance he filed based on the delay in getting an appointment with the prison physician about his medication. During the exchange with Ford and Gibson over having to work, Grossman said he would press ahead with his grievance. He argues the disciplinary charges were lodged in retaliation for the grievance and, therefore, were legally improper. Grossman, however, mischaracterizes the protections against retaliation and the circumstances resulting in the disciplinary charges here.
This court has recognized that an inmate may have a claim under 42 U.S.C. § 1983 (2006) if disciplinary actions are lodged in retaliation for a suit the inmate has filed protesting prison conditions or his treatment while in custody. Bloom v. FNU Arnold, 45 Kan.App.2d 225, 232–34, 248 P.3d 752 (2011). If proven, that sort of improper use of the administrative disciplinary process would likely violate the inmate's rights to free speech and to seek redress, as protected in the First Amendment to the United States Constitution. In an earlier case involving Grossman, this court recognized those First Amendment protections may be extended to inmate grievances challenging workplace safety. Grossman v. Werholtz, No. 105,708, unpublished opinion, slip op. at 7 (Kan.App.2011).
Taking the evidence in the best light for Grossman, however, the disciplinary action in this case was not initiated because he had filed a grievance about the delay in seeking the prison doctor. Rather, during the confrontation with Ford and Gibson over whether he should be working, Grossman threatened to continue on with the grievance he had already filed. In other words, Grossman injected the grievance into the dispute as another tool of intimidation and threat to complement his not-so-veiled suggestion that he might physically harm prison employees or other inmates. In short, Grossman turned the existing grievance into a bludgeon to get off work. That sort of disruptive conduct, apart from the underlying grievance, is not constitutionally protected activity in a prison setting. Watkins v. Kasper, 599 F.3d 791, 798–99 (7th Cir.2010). In turn, the disciplinary write-up issued based on the whole of Grossman's threatening and intimidating behavior to get off work could not have been impermissibly retaliatory. Grossman's retaliation claim fails.
The district court properly denied Grossman's petition, and that ruling is affirmed.