Opinion
No. 107,021.
2012-09-7
Ronald J. PRUITT, Appellant, v. Raymond ROBERTS, Warden, El Dorado Corr. Fac, KDOC, et al., and Kansas Parole Board, et al., Appellees.
Appeal from Butler District Court; Charles M. Hart, Judge. Ronald J. Pruitt, appellant pro se. Julie St. Peter, staff attorney, of Kansas Department of Corrections, El Dorado Correctional Facility, for appellees.
Appeal from Butler District Court; Charles M. Hart, Judge.
Ronald J. Pruitt, appellant pro se. Julie St. Peter, staff attorney, of Kansas Department of Corrections, El Dorado Correctional Facility, for appellees.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ronald J. Pruitt appeals from the district court's decision dismissing his K.S.A. 60–1501 petition. For the reasons stated below, we affirm the decision of the district court to dismiss Pruitt's petition.
Facts
Pruitt is an inmate at the El Dorado Correctional Facility (EDCF). He was convicted in Harvey County case No. 87 CR 3342 of aggravated sodomy, rape, aggravated kidnapping, and aggravated burglary. Pruitt was sentenced on February 22, 1988, to an indeterminate sentence of life imprisonment. The sentence included two 5–to 20–year sentences for aggravated sodomy and rape and a life sentence for aggravated kidnapping. These three sentences were concurrent with each other and consecutive to a 3–to 10–year sentence for aggravated burglary. Pruitt was placed in the custody of the Kansas Department of Corrections (KDOC) on November 26, 1988.
In February 1996, the KDOC offered Pruitt an opportunity to participate in a program plan to assist him “in making changes that would better allow [him] to re-enter the community and live without coming in conflict with the law” under K.A.R. 44–5–105(b). The KDOC informed Pruitt that although participation in the program plan was optional for him, his failure to participate in or complete recommended programs would result in the withholding of good-time credits, which would affect his release date. Pruitt opted not to participate in the program plan and refused to sign the inmate program plan report, which advised him of the option to participate and the consequences for failing to do so.
In October 2003, the Kansas Parole Board (KPB) considered Pruitt for parole, denied release, and passed reconsideration for 1 year to November 2004. In October 2004, the KPB again denied release. This time, however, the KPB recommended Pruitt complete the sexual offender treatment program and passed reconsideration for 3 years, to November 2007, due to the serious and violent nature of the crimes and objections that had been lodged to Pruitt's parole.
In October 2007, the KPB denied Pruitt release and passed reconsideration for 6 years, to November 2013. The KPB again recommended Pruitt complete the sexual offender treatment program and gave the same reasons for denying parole, with the addition of the inmate “denies responsibility.”
In September 2010, the KDOC completed a program classification review for Pruitt, which reflected that he refused to participate in any of the programs available to inmates during the time period from May 2010 through September 2010. Concerned that the KDOC had characterized his decision not to participate in any of the inmate programs as a violation of applicable prison regulations, Pruitt instituted the first step of the inmate grievance process, which requires the inmate to submit a written complaint to staff to informally resolve the grievance. See K.A.R. 44–15–101(b). Pruitt complained that the classification review falsely reported that he failed to comply with the terms of a program agreement into which he entered. Specifically, Pruitt claimed that he was convicted before the effective date of the law making participation in prison programs mandatory, that participation in a prison program plan was optional for inmates convicted prior to the law becoming effective, and that he had never opted to enter into an inmate program plan agreement and therefore could not have failed to comply with its terms. Pruitt also alleged each of the decisions denying him parole were the result of a conspiracy to make him comply with post–1988 statutes.
On November 2, 2010, Pruitt's Unit Team Manager Hans Huffman responded in writing to Pruitt's complaint. Huffman confirmed that Pruitt had the right to refuse to participate in a program plan and denied the charge of conspiracy. Huffman also noted that Pruitt was offered and refused three program plans, that he was being managed as a sex offender due to his convictions of aggravated sodomy and rape, and that his treatment was consistent with how sex offenders were managed in the KDOC. Finally, Huffman stated that the grievance procedure was not the proper vehicle in which to challenge the institution's classification decision-making process.
After receiving this written response, Pruitt submitted a formal grievance reiterating his allegations. On November 15, 2010, Huffman responded, stating again that Pruitt's treatment was consistent with how sex offenders were treated and that no further action was necessary. Pruitt indicated he was not satisfied with the unit team's response and requested that his grievance be forwarded to Ray Roberts (Warden), the warden of EDCF, who responded in writing on November 29, 2010. Although the Warden did not provide a clear decision, he quoted K.A.R. 44–15–101a(d)(2) and K.A.R. 44–15–102(c)(l). Pruitt appealed the grievance to the Secretary of Corrections, claiming to have received no response from the Warden.
On January 24, 2011, Pruitt filed a petition for writ of habeas corpus under K.S.A. 60–1501 against the KDOC and the KPB. The district court held a hearing on May 2, 2011, at which it heard arguments from Pruitt, who appeared pro se, and the attorney for the Warden and the KDOC. The attorney for the Warden and the KDOC specifically noted that she was not representing the KPB and that, to her knowledge, the KPB had never been served. On July 25, 2011, the district court denied Pruitt's motion and dismissed the case.
Analysis
We begin our analysis by framing the underlying issues presented to the district court in Pruitt's original petition. Pruitt named two defendants in the petition for writ of habeas corpus: Raymond Roberts in his official capacity as warden of EDCF. The first claim in Pruitt's petition alleged that the KDOC violated ex post facto laws by punishing him for his decision not to participate in prison programs. Specifically, Pruitt asserted the KDOC punished him by (a) reducing him to an Incentive Level I under the Internal Management Policy and Procedure (IMPP) for refusing to participate in a K.S.A. 75–5210a program plan, notwithstanding the fact that he was exempt from the requirements of that statutory program; and (b) by preparing a program classification review that improperly characterized him as having an inmate program plan agreement that he failed to complete.
The second claim set forth in Pruitt's petition was brought against both the KPB and the KDOC. Specifically, Pruitt alleged the two entities engaged in a conspiracy to deny him parole based on his decision not to participate in a program plan, even though he was not required to participate.
The district court denied Pruitt relief on both of these claims. With regard to the first claim, the district court held the requirement in K.S.A. 75–5210a to successfully complete a program plan does not apply retroactively and thus the statute does not violate the ban on ex post facto laws. The court further held that retroactive application of IMPP 11–101 to Pruitt (which reduced him to an Incentive Level I) and Pruitt's program classification review indicating a lack of program participation did not result in additional punishment for Pruitt and therefore those actions were not ex post facto applications of law.
With regard to the second claim, the court held that a K.S.A. 60–1501 action is not the proper procedural vehicle for asserting a claim of conspiracy. The court further held the claim was procedurally defective because the KPB, as one of the two alleged coconspirators, had never been served with the petition.
In appealing the district court's decision, Pruitt asserts four errors: (1) The district court erred in summarily dismissing his claim alleging that the KDOC's actions violated ex post facto laws; (2) the district court erred in holding that Pruitt's conspiracy claims were not appropriate for consideration in a K.S.A. 60–1501 action; (3) the district court erred in holding that Pruitt's failure to serve the KPB precluded the court from addressing his conspiracy claims against the KPB; and (4) the district court unlawfully excluded evidence at the May 2, 2011, hearing. We address each claim in turn.
1. The Constitutional Prohibition Against Ex Post Facto Laws
Pruitt argues actions taken by the KDOC unconstitutionally subjected him to ex post facto applications of law. Specifically, Pruitt contends the KDOC retroactively applied IMPP 11–101 to reduce him to Incentive Level I based on his lack of participation in a program plan, which Pruitt alleges unlawfully deprived him of his vested right to remain classified at an Incentive Level III. Pruitt also contends that the KDOC retroactively applied K.S.A. 75–5210a to prepare a program classification review that improperly characterized him as having an inmate program agreement that he failed to complete, which necessarily deprived him of his right to a meaningful review for parole eligibility.
To determine whether a K.S.A. 60–1501 petition states a claim for relief, the court examines the allegations in the petition and the contents of any attachments to determine if the petition alleges “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). Appellate courts must accept as true the allegations in the petition to determine whether the facts alleged—and the reasonable inferences that can be drawn from them—state a claim for relief. 285 Kan. at 679.
The United States Constitution prohibits laws or other mandates that operate retroactively to increase the punishment for a crime after it is committed. See U.S. Const., art. 1, § 9, cl. 3; art. 1, § 10, cl. 1. “In order for a law to be considered ex post facto, two elements must be present: (1) The law must be retrospective, applying to events occurring before its enactment, and (2) it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable. [Citation omitted.]” Anderson v. Bruce, 274 Kan. 37, 42–43, 50 P.3d 1 (2002). a. IMPP 11–101
IMPP 11–101 is an internal management policy and procedure concerning offender privileges and incentives. To move up in the levels, the inmate must demonstrate a willingness to participate in recommended programs. An inmate is automatically reduced to Incentive Level 1 if he or she refuses to participate in a recommended program. Stansbury v. Hannigan, 265 Kan. 404,418, 960 P.2d 227,cert. denied525 U.S. 1060 (1998).
Pruitt's crimes occurred in February 1987. He was sentenced in 1988. The incentive-level system of which he complains was implemented by IMPP 11–101, which took effect in 1996. See Vinson v. McKune, 265 Kan. 422, 423, 960 P.2d 222 (1998). There is no question that the policy applies retrospectively; thus, the first element necessary to establish a violation of the Ex Post Facto Clause has been met. Pruitt is unable, however, to establish the second element of a violation: that retrospective application of the policy imposes an additional punishment or penalty against him. In Vinson, our Supreme Court concluded that although IMPP 11–101 “may affect the conditions upon which the inmate's sentence is served,” its provisions “do not increase punishment beyond what was prescribed when the crime was consummated” and therefore do not violate the Ex Post Facto Clause. Vinson, 265 Kan. at 426. “[T]he ex post facto prohibition ... forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred.” Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). The incentive-level system simply provides a mechanism by which the KDOC may effectively manage prisoners. Its application to Pruitt has not resulted in an increase in the penalty for the offenses for which he was convicted. Accordingly, Pruitt has not stated a claim for an ex post facto violation. b. Program Classification Review
In 1988, after Pruitt was convicted in the current case, the legislature enacted K.S.A. 75–5210a, which directs the Secretary of Corrections to enter into program agreements with inmates, and K.S.A. 22–3717(g)(2), which conditions the KPB's ability to grant parole upon successful completion of a program agreement. See L.1988, ch. 115, secs. 1, 6. Because the statutes applied new requirements for parole eligibility, applying them retroactively to inmates who were convicted before the statutes were enacted in 1988 necessarily violates the United States Constitution's ban on ex post facto laws. See U.S. Const., art. I, § 10; Payne v. Kansas Parole Board, 20 Kan.App.2d 301, 303–04, 887 P.2d 147 (1994).
To that end, Pruitt argues the KDOC violated the ban on ex post facto laws when it retroactively applied K.S.A. 75–5210a to prepare a program classification review that improperly characterized him as having an inmate program agreement that he failed to complete. For the reasons set forth below, we are not persuaded by Pruitt's argument.
First, Pruitt fails to allege any facts to establish the first element of an ex post facto violation: that the KDOC retroactively applied K.SA. 75–5210a to require him to enter into and successfully complete a program agreement. Although the program classification review noted Pruitt “[r]efused to enter” into any program assignments, Pruitt does not allege, and the language in the program classification review does not suggest, that Pruitt was ever required to enter into a program agreement or that Pruitt started a program without successfully completing it.
Moreover, Pruitt fails to establish the second element of an ex post facto violation: that the notation in Pruitt's program classification review gave rise to an additional punishment or penalty against him. To the extent that Pruitt is claiming he will be denied parole at his November 2013 review (and thus will be forced to serve a longer sentence), Pruitt's claim is premature. To the extent he is claiming a similar notation in a previous review caused the KPB to deny parole and/or pass him for extended intervals in 2004 and 2007, Pruitt's claim is nothing more than conjecture. Specifically, Pruitt has failed to provide any facts from which to find a causal relationship between such a notation in his program classification review and the KPB's decision to deny parole. In fact, the KPB stated in its October 2004 decision that it was denying parole and passing reconsideration for 3 years due to the serious and violent nature of the crime and objections that had been lodged to Pruitt's parole. In its October 2007 decision, the KPB denied parole due to the serious and violent nature of the crime, objections that had been lodged to Pruitt's parole, and Pruitt's failure to accept responsibility for the crimes he committed. Simply put, we find Pruitt's allegations here fail to state an actionable claim for an ex post facto violation.
2. The Conspiracy Claim
In his K.S.A. 60–1501 petition for relief, Pruitt alleges the KPB and the KDOC conspired to deprive him of his right to meaningful consideration for parole eligibility. The district court summarily dismissed Pruitt's conspiracy claim on grounds that it was not appropriate for consideration in a K.S.A. 60–1501 action.
“[A] [K.S.A. 60–]1501 petition is a procedural means through which a prisoner may challenge the mode or conditions of his or her confinement, including administrative actions of the penal institution.” Safarik v. Bruce, 20 Kan.App.2d 61, 67, 883 P.2d 1211, rev. denied 256 Kan. 996 (1994). In order to survive summary dismissal, a 60–1501 petitioner must allege shocking and intolerable conduct or continuing mistreatment of a constitutional nature. Schuyler, 285 Kan. at 679. Pruitt's conspiracy claim will survive summary dismissal only if Pruitt alleges that the KDOC and the KPB conspired to deprive him of a legal right that rises to the level of constitutional protection. See Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153 (1984) (setting forth elements of a civil conspiracy).
Here, Pruitt identifies the objective of the conspiracy as one to deprive him of his legal right to meaningful consideration of eligibility for parole. But parole is a privilege in Kansas, not a fundamental right subject to constitutional protections, and our Supreme Court repeatedly has held that the parole statute does not give rise to a liberty interest for an inmate being considered for parole. See Gilmore v. Kansas Parole Board, 243 Kan. 173, 180, 756 P.2d 410,cert. denied488 U.S. 930 (1988); Johnson v. Stueker, 203 Kan. 253, 257, 453 P.2d 35,cert. denied396 U.S. 904 (1969) (“Parole from confinement in a penal institution prior to serving all of an imposed sentence is a privilege, a matter of grace, and no constitutional right is involved.”). Accordingly, the district court did not err in summarily dismissing Pruitt's conspiracy claim on grounds that it was not appropriate for consideration in a K.S.A. 60–1501 action.
3. Failure to Serve the KPB
The district court dismissed Pruitt's claim of conspiracy against the KPB based, in part, on Pruitt's failure to serve the KPB with his petition. Pruitt asserts the court's decision in this regard amounts to legal error.
We note, as a preliminary matter, that K.S.A. 60–1501(b) does not require a petitioner to serve the respondents named in the petition. The statute only requires the petitioner to “ file a petition for writ” of habeas corpus. (Emphasis added.) K.S.A. 60–1501(b). The procedural steps to be taken after such a filing are specifically set forth in the habeas statutes, which previously have been summarized by our court as follows:
“Filing of the petition triggers the district court's duty to review the petition to determine whether it appears to set forth any claims that may entitle the inmate to relief. K.S.A. 60–1503(a). If the district court determines that the inmate may be entitled to relief, the court ‘shall issue the writ and order the person to whom the writ is directed to file an answer ... or to take such other action as the judge deems appropriate.’ K.S.A. 60–1503(a). The statute provides for service of the writ upon the Secretary [of Corrections], K.S.A. 60–1503(c), but no provision requires serving the petition when it is initially filed. Nor does the statute provide for an answer by the Secretary [of Corrections] to the petition; an answer is filed to the writ, not to the petition. K.S.A. 60–1504(a).” Sauls v. McKune, 45 Kan.App.2d 915, 916–17, 260 P.3d 95 (2011).
In this case, it appears the district court never issued a writ in conjunction with Pruitt's claim against the KPB; thus, the district court erred in holding that Pruitt's failure to serve the KPB precluded the court from addressing his claims against the KPB. Nevertheless, dismissal of Pruitt's claims against the court's finding was not reversible error in light of the fact that—as set forth in detail above—Pruitt's conspiracy allegation against the KPB failed to state a claim under K.S.A. 60–1501.
4. Exclusion of Evidence
In his remaining issue, Pruitt argues that the district court is “secreting” information from the hearing it held on Pruitt's motion on May 2, 2011. Pruitt contends that he introduced evidence at the hearing, but the evidence is not included in the record on appeal.
At the hearing, Pruitt argued that according to IMPP 11–107, only if he entered into a program plan and then refused to enter or participate in one or more of the programs on the agreement could it be documented in his “unit team file, database, and on the inmate review that he ... has ‘refused’ participation.” IMPP 11–107(I)(E). At the May 2, 2011, hearing, the district judge accepted Pruitt's copy of IMPP 11–107 and marked it as Inmate's Exhibit 1. As Pruitt alleges, a copy of IMPP 11–107 is not in the record on appeal. This is apparently one of the exhibits Pruitt is claiming the district court is “secreting.” But the fact that this evidence does not appear in the record is not reversible error. This is because the current version of the IMPP is available for this court's review on the KDOC website (http:// www.doc.ks.gov/kdoc–policies/impp/chapter–11/11107.pdf). See K.S.A. 60–409(b)(4) (“Judicial notice may be taken without request by a party, of ... specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.”).
During the hearing, Pruitt also offered the district judge copies of another inmate's program plans to support his argument that the KDOC punished pre–1988 inmates who refused to enter into program plans by extending the time they must serve in prison. Pruitt apparently showed these documents to the district judge, but they were not marked for identification or accepted as evidence by the district judge. These documents do not appear in the record on appeal. But the fact that these documents were never introduced into evidence and, thus, did not become part of the record on appeal, is not error. Another inmate's program plan simply is not relevant to Pruitt's allegation that his own constitutional rights were violated. Pruitt has failed to show that the district court concealed any evidence in order to undermine Pruitt's ability to preserve evidence for appeal.
Affirmed.