Opinion
No. 107,688.
2012-08-31
Todd Carlton SMITH, Appellant, v. James HEIMGARDER, Warden, Appellee.
Appeal from Butler District Court; John E. Sanders, Judge. Todd Carlton Smith, appellant pro se. Julie St. Peter, legal counsel, of El Dorado Correctional Facility, for appellee.
Appeal from Butler District Court; John E. Sanders, Judge.
Todd Carlton Smith, appellant pro se. Julie St. Peter, legal counsel, of El Dorado Correctional Facility, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Todd Carlton Smith was convicted in a prison disciplinary proceeding of the theft of some brownies at El Dorado Correctional Facility. The hearing officer found that Smith obtained the brownies from the prison food cart in violation of K.A.R. 44–12–203. Smith was sanctioned to 10 days of disciplinary segregation and a $10 fine, but the sanctions were suspended for 180 days. Smith has appealed to this court, contending that he was denied due process during the disciplinary process and that the Department of Corrections violated his equal-protection rights by treating him differently than other inmates based on race.
But the right to due process—and court review—applies only when an inmate is deprived of some constitutionally protected interest. Here, since the sanctions (which included a fine) were suspended and not imposed, no due-process rights are involved and Smith has no right to have a Kansas court review his case. And Smith has not provided sufficient facts to make a potentially valid equal-protection claim. We therefore affirm the district court's judgment, which dismissed Smith's K.S.A. 60–1501 petition.
Factual Background
Smith is an inmate at the El Dorado Correctional Facility. Smith is serving a Florida sentence, and he was transferred to Kansas under the Interstate Corrections Compact.
On November 10, 2011, a food-service employee brought a disciplinary complaint against Smith by filing a disciplinary report. According to the report, a review of a videotape from November 8 showed Smith opening a metal baker's box and taking an unknown number of brownies from the prison food cart. The report charged Smith with taking without permission under K.A.R. 44–12–204, a class II prison offense. According to later testimony, the report was given to Smith on November 10.
At 7:40 a.m. on November 14, an additional disciplinary report amended the charge to theft under K.A.R. 44–12–203, a class I offense. Smith acknowledged receipt of the amended report and initialed a form “waiv[ing] time limits or other procedure(s)” with no further explanation. According to the documents in our record, a hearing was conducted 5 minutes later—at 7:45 a.m. Smith testified that while working he asked another inmate named Silis if he could have a brownie. According to Smith, Silis opened the baker's box and gave him brownies. Smith stressed that he did not “take” the brownies—they were given to him. Silis agreed with Smith's testimony and stated that he gave Smith brownies. The hearing officer reviewed the video and concluded that the video showed that Smith and Silis were at the brownie cart and that Silis gave Smith an unknown number of brownies. The hearing officer found Smith guilty of theft by a preponderance of the evidence and sanctioned Smith to 10 days of disciplinary segregation and a $10 fine, both of which were suspended for 180 days. Smith also reports that he was fired from his job with the prison food-service provider; Smith says that he was employed there before this incident.
Smith appealed the hearing officer's decision, arguing that (1) the facts in the disciplinary report were not supported by the video and testimony; (2) the hearing officer failed to provide factual reasons for amending the charge to theft; and (3) Smith was being racially discriminated against. The Secretary of Corrections upheld the decision, finding that the decision was based on “some evidence” and that K.A.R. 44–13–202 allowed amendment of the charge.
On December 19, 2011, Smith filed a habeas petition under K.S.A. 60–1501 arguing the same three issues. The district court summarily dismissed his petition, finding that there was some evidence to support the conviction and that no due-process rights were implicated because the sentence and fine were suspended.
Smith has appealed to this court.
I. The Sanctions Imposed Against Smith Do Not Implicate a Liberty Interest Protected by Due Process.
a. Kansas Law Applies.
As an initial matter, we must determine whether Kansas or Florida law controls this case. Smith is serving a Florida sentence in Kansas under the Interstate Corrections Compact (ICC), K.S.A. 76–3001 et seq. The ICC provides for the transfer of prisoners among states and makes clear that prisoners transferred under the ICC remain under the jurisdiction of the state in which the convictions originated—the receiving state acts solely as the agent for the sending state. K.S.A. 76–3002, art. IV(a); Fla. Stat. § 941 .56, art. IV(a) (2006). The ICC, as adopted by participating states including Kansas and Florida, provides in Article IV(e) that inmates generally retain any rights they would have had if confined in the sending state:
“All inmates who may be confined in an institution pursuant to the provisions of this compact shall be treated in a reasonable and humane manner and shall be treated equally with such similar inmates of the receiving state as may be confined in the same institution. The fact of confinement in a receiving state shall not deprive any inmate so confined of any legal rights which said inmate would have had if confined in an appropriate institution of the sending state.” K.SA. 76–3002, art. IV(e); Fla. Stat. § 941.56, art. IV(e).
Similarly, Article IV(f) of the ICC provides that any hearings the inmate is entitled to may be held in either state:
“Any hearing or hearings to which an inmate confined pursuant to this compact may be entitled by the laws of the sending state may be had before the appropriate authorities of the sending state, or of the receiving state if authorized by the sending state.... In the event such hearing or hearings are had before officials of the receiving state, the governing law shall be that of the sending state.... In any and all proceedings had pursuant to the provisions of this subdivision, the officials of the receiving state shall act solely as agents of the sending state and no final determination shall be made in any matter except by the appropriate officials of the sending state.” K.S.A. 76–3002, art. IV(f); Fla. Stat. § 941.56, art. IV(f).
But the ICC does not require the application of the sending state's disciplinary rules and regulations to a transferred prisoner. See Stewart v. McManus, 924 F.2d 138, 141 (8th Cir.1991) (refusing to apply Kansas disciplinary rules and regulations to a Kansas prisoner transferred to Iowa under the ICC). As the Eighth Circuit Court of Appeals explained: “ [D]isciplinary authority shall be exercised by the receiving state. Moreover, the contract provision prohibiting the receiving state from imposing a type of discipline prohibited by the laws of the sending state does not require that [the receiving state's] correctional authorities impose [the sending state's] disciplinary rules to violations of the [receiving state's] disciplinary rules.” 924 F.2d at 141. The Eighth Circuit held that the prisoner had no liberty interest or equal-protection right entitling him to the sending state's disciplinary rules. 924 F.2d at 141.
Under the ICC, the receiving state is not required to apply custody classification or other policies of the sending state. Blevins v. Werholtz, No. 09–3033–SAC, 2009 WL 539913, at *3 (D.Kan.2009) (unpublished opinion) (citing Garcia v. Lemaster, 439 F.3d 1215, 1220 [10th Cir.2006]; Stewart, 924 F.2d at 141;Cranford v. Iowa, 471 N.W.2d 904 [Iowa App.1991]; Glick v. Holden, 889 P.2d 1389, 1393 [Utah App.1995];). As the United States District Court for the District of Kansas has said: “It is only common sense that the authorities having daily physical custody of an ICC inmate must determine the inmate's appropriate security classification and concomitant level of privileges, programs, and conditions of confinement.” Blevins, 2009 WL 539913, at *3 (citing Jaben v. Moore, 788 F.Supp. 500, 504 [D. Kan.1992] ). Therefore, “ICC inmates are subject to all laws and regulations applicable to inmates in the receiving state, and their entitlement is to be treated equitably with those inmates.” Blevins, 2009 WL 539913, at *3. Although Florida retains jurisdiction over Smith, Florida's jurisdiction relates to transfer decisions and matters concerning his Florida conviction and sentence. See Garcia, 439 F.3d at 1220 (citing Article IV(a) and IV(c) of the ICC); Leach v. Dahm, 277 Neb. 452, 455–56, 763 N.W.2d 83 (2009) (holding that receiving state of Nebraska lacked jurisdiction to consider the constitutionality of transferred prisoner's Florida sentence).
Smith cites Lynn v. Simmons, 32 Kan.App.2d 974, 95 P.3d 99 (2003), and Meyer v. Moore, 826 So.2d 330 (Fla.Dist.App.2002), to argue that Florida law applies. But those cases are easily distinguished from our situation. In Lynn, the prisoner was arguing that he was serving an illegal sentence and had been involuntarily transferred to Oklahoma. In Meyers, the Kansas prisoner in Florida was seeking to be transferred back to Kansas.
Here, Smith is not challenging a transfer decision or his underlying Florida conviction and sentence. Instead, Smith is challenging a disciplinary proceeding in a Kansas facility. Accordingly, we analyze Smith's case as we would any other K.S.A. 60–1501 petition under the laws of Kansas. b. None of the Sanctions Imposed or Claimed to Have Been Imposed Here Implicate a Liberty or Property Interest Protected by Due Process.
We review a district court's summary dismissal of a petitioner's K.S.A. 60–1501 claim independently, without any required deference to the district court. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). In determining whether a K.S.A. 60–1501 petition states a claim for relief, the district 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). When reviewing a district court's summary dismissal for failure to state a claim, the appellate court is required to 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; see Hill v. Simmons, 33 Kan.App.2d 318, 320, 101 P.3d 1286 (2004) (court must determine whether a claim is stated on any possible theory, not just theory asserted by petitioner).
Courts apply a two-step analysis for due-process violations: “The first inquiry is whether the State has deprived [petitioner] of life, liberty, or property. If there has been a deprivation through State action, we must next determine the extent and nature of the process which is due.” Rogue v. Bruce, 279 Kan. 848, 850–51, 113 P.3d 234 (2005).
Smith argues that he has a liberty interest to earn his incentive gain time each month. Smith seems to acknowledge that the suspended sanctions of 10 days of disciplinary segregation and a $10 fine do not create a liberty or property interest because he argues that the suspension was merely a “smoke screen” for the Department of Corrections to interfere with his access to the courts. Smith also argues he suffered the following sanctions because of his conviction: drop in incentive level, loss of personal property, loss of craft materials, loss of various privileges, loss of incentive lay-in pay, and termination from his food-service job. Smith also argues that he has a liberty interest because the prison violated his First Amendment, due-process, and equal-protection rights.
The suspended sanctions of disciplinary segregation and a fine do not implicate a liberty or property interest because they were never actually imposed. The Department of Corrections reports that as of April 9, 2012, the fine had not been collected, and Smith never argues otherwise. “Punishments never imposed do not implicate a protected ... interest.” Hardaway v. Larned Correctional Facility, 44 Kan.App.2d 504, 505–06, 238 P.3d 328 (2010) (citing Davis v. Ward, 92 Fed. Appx. 634, 635 [10th Cir.2004] [unpublished opinion] ); see Ramirez v. State, 23 Kan.App.2d 445, Syl. ¶ 1, 931 P.2d 1265 (inmate's disciplinary action does not implicate due process absent contention that punishment imposed represents a significant and atypical hardship), rev. denied 262 Kan. 962 (1997).
Additionally, there is no protected interest in keeping prison employment, being able to possess certain property, or enjoying certain activities and statuses available at different levels within a prison's internal privileges and incentives leveling system. Stansbury v. Hannigan, 265 Kan. 404, 421, 960 P.2d 227,cert. denied525 U.S. 1060 (1998); see Marshall v. Morton, 421 Fed. Appx. 832, 838 (10th Cir.2011) (unpublished opinion). So none of the punishments Smith claims he received took away any of his constitutionally protected interests.
Smith's main argument is that he has a liberty interest in earning his incentive gain time each month. In his petition, Smith argued that “[a] disciplinary [infraction] will deprive the petitioner from receiving the (20) days gain-time for the month of receiving the disciplinary report and the (20) days gain-time for the following three (3) months[,] [thus affecting] his release date by (80) days more to serve on his sentence.” (Emphasis added.) The record does not indicate that the disciplinary proceeding took away any good-time or gain-time credits actually earned by Smith. He appears to be claiming only a prospective loss of good-time or gain-time credits.
In Kansas, loss of good-time credit that is not yet earned does not constitute a recognized liberty interest implicating due process. See In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 8, 24 P.3d 128 (2001) ( “The credits can be withheld because the inmate had not yet earned the credits by being violation free for the review period; thus, the inmate had no protected liberty interest.”); see also Davis v. McKune, 30 Kan.App.2d 822, 824, 48 P.3d 1287 (2002) (reduction of good-time credits retroactively awarded because of disciplinary violations did not implicate due process—no protected liberty interest in unearned good-time credit).
Smith cites to the Florida Administrative Code, arguing that it gives him a liberty interest to earn his gain-time credits each month. If Smith had remained incarcerated in Florida, he would have been subject to Florida's gain-time provisions. Under ICC Article IV(h), Smith would have the right to obtain any gain-time benefits the Florida prisons could provide. Florida Statutes Section 944.275 (2006) and Florida Administrative Code Section 33–601.101 (2005) govern incentive gain time in Florida. Both sections authorize prison officials to grant gain time. Fla. Stat. § 944.275; Fla. Adm.Code § 33–601.101.
But just as in Kansas, nothing in Florida law requires prison officials to grant incentive gain time. Hartley v. Warden of Florida State Prison, 352 Fed. Appx. 368, 371 (11th Cir.2009) (unpublished opinion) (citing Fla. Stat. § 944.275; Fla. Adm.Code § 33–601.101); See Blome v. Tucker, No. 1:12–cv–73–MP–GRT, 2012 WL 1700835, at *3 (N.D.Fla.2012) (unpublished opinion) (citing Hartley and other federal Florida cases agreeing with the holding). Accordingly, a Florida prisoner cannot show he or she had a legitimate expectation of gain time. Hartley, 352 Fed. Appx at 371. Just as in Kansas, the loss of eligibility to earn gain time in Florida “is not a sufficient liberty interest to invoke the protections of the Due Process Clause.” 352 Fed. Appx. at 371.
Because Smith has not been deprived of any actually earned good time or gain time, he does not have a liberty interest under either Kansas or Florida law. Because the $10 fine was suspended and never imposed, none of the other sanctions claimed by Smith give him a protected liberty or property interest, either. With no liberty or property interest affected, there is no need to analyze the due process provided in the disciplinary proceeding. See Hogue, 279 Kan. at 850–51.
II. Smith's K.S.A. 60–1501 Petition Alleging Racial Discrimination Did Not State an Equal–Protection Claim.
We review a district court's summary dismissal of a habeas claim under K.S.A. 60–1501 claim independently, without any required deference to the district court. Johnson, 289 Kan. at 649. In determining whether the petition states a claim for relief, the district 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, 285 Kan. at 679. The court 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.
Although Smith alleged racial discrimination in his disciplinary appeal, his K.S.A. 60–1501 petition, and his appellate brief, neither the Department of Corrections nor the district court addressed his claim in any form—even cursorily. From the record, it does not appear that Smith raised racial discrimination at the disciplinary hearing. In his petition, however, Smith claimed that Silis—the inmate who opened the baker's box and gave Smith the brownies—was Hispanic but was neither disciplined nor removed from his food-service job for his conduct. Smith also claimed that “several other” Hispanic inmates entered the food cart and ate brownies without punishment and that the food-service supervisors were Hispanic as well. In contrast, Smith claimed, he was fired for the same conduct because he is a “White Muslim.” Smith also claimed that another white inmate named Ewing was also written up and fired. Smith cites to the videotape as evidence, but the record on appeal contains no videotape or other factual support for Smith's allegations.
The constitutional principle of equal protection is implicated when there is disparate treatment by a state between classes of individuals whose situations are arguably indistinguishable. See Hodges v. Johnson, 288 Kan. 56, 72, 199 P.3d 1251 (2009); State v. Mueller, 271 Kan. 897, 903, 27 P.3d 884 (2001), cert. denied535 U.S. 1001 (2002) (quoting Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 41 L.Ed.2d 341 [1974] ). But “the conscious exercise of some selectivity in enforcement is not itself a federal constitutional violation.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); United States v. Armstrong, 517 U.S. 456, 463–65, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); see Brandon v. District of Columbia Bd. of Parole, 823 F.2d 644, 650 (D.C.Cir.1987).
In order to show a denial of equal protection, there must be an element of intentional or purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944). Although federal appeals courts have described the legal standard in somewhat different terms, generally, to succeed on an equal-protection claim, a claimant must first demonstrate that he or she has been treated differently from others similarly situated and that the unequal treatment resulted from discrimination. See, e.g ., SECSYS, LLC v. Vigil, 666 F.3d 678, 684–85 (10th Cir.2012); Chambers v. School Dist. Philadelphia Bd. of Educ., 587 F.3d 176, 196 (3d Cir.2009); Ganley v. Minneapolis Park and Recreation Bd., 491 F.3d 743, 747 (8th Cir.2007); Priester v. Lowndes County, 354 F.3d 414, 424 (5th Cir.2004); Jones v. Ray, 279 F.3d 944, 946–47 (11th Cir.2001); McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir.2001); Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.2001); Brandon, 823 F.2d at 650–51. Protection against racial discrimination is equally available to white inmates as it is to racial minorities. See Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir.1996) (stating an equal-protection claim when white prisoner alleged that primarily black prison staff discriminated against whites).
Here, Smith's allegations are conclusory—we can't tell from what he has said whether his situation is, in fact, identical to that of others who were not similarly punished. More importantly, Smith has not shown that his punishment resulted from discrimination.
Smith admitted to asking for and eating the brownies—the facts support his conviction of theft. Smith's case for discrimination is based solely on an observation of differences in treatment between Smith and some other inmates who weren't punished. Other than this alleged disparity in treatment, Smith does not state any other facts alleging a discriminatory intent or purpose. See Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”); Snowden, 321 U.S. at 8.
Although we presume the facts set out in a habeas petition under K.S.A. 60–1501 to be true, the petition is properly dismissed if the facts alleged still do not state a valid claim. See Brull v. Kansas Dept. of SRS, No. 103,948, 2011 WL 420725, at *1 (Kan.App.2011) (unpublished opinion). As for equal-protection claims, without supporting factual evidence, courts will not inquire into whether decisions of prison officials are racially motivated. 1 Mushlin, Rights of Prisoners § 5:8, pp. 651–52 (4th ed.2009); see, e.g., Harris v. Ostrout, 65 F.3d 912 (11th Cir.1995) (finding that inmate presented no evidence of racial bias other than conclusory allegations); Gibson v. McEvers, 631 F.2d 95, 98–99 (7th Cir.1980); Champion v. Murphy, 643 F.Supp.2d 1171, 1177 (C.D.Cal.2009), aff'd No. 09–55651, 2010 WL 3377629, at *1 (9th Cir.2010) (unpublished opinion) (finding that prisoner's equal-protection claim against prison dentist did not raise a triable issue of fact when prisoner, merely alleged that the dentist wanted to pull teeth that did not need to be pulled and gave him “little smirks” showing discriminatory intent); Deberry v. Davis, 460 Fed. Appx. 796, 801 (10th Cir.2012) (unpublished opinion) (finding allegation that inmate was treated differently than similarly situated prisoners insufficient to withstand motion to dismiss equal-protection claim); Johnson v. Paparozzi, 219 F.Supp.2d 635, 643–44 (D.N.J.2002) (finding that inmate failed to state an equal-protection claim where he alleged, without setting forth any supporting facts, that he had been denied parole because he was not a white inmate who was a friend or acquaintance of a member of the parole board or other official); Jackson v. Hogan, 388 Mass. 376, 446 N.E.2d 692 (1983) (finding that conclusory allegations of racism without support are not actionable); see also Heath v. Kansas, No. 11–3142–SAC, 2011 WL 4900362, at *9 (D.Kan.2011) (unpublished opinion). Because Smith has not alleged any facts supporting a discriminatory intent or purpose, he has not stated an equal-protection claim. So the summary dismissal of his claim was proper.
The district court's judgment is affirmed.