Opinion
No. 108,829.
2013-06-7
Sean BOYDSTON, Appellant, v. Dan SCHNURR, et al., Appellees.
Appeal from Ellsworth District Court; Ron Svaty, Judge. Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellant. Robert E. Wasinger, of Kansas Department of Corrections, for appellee.
Appeal from Ellsworth District Court; Ron Svaty, Judge.
Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellant. Robert E. Wasinger, of Kansas Department of Corrections, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Sean Boydston appeals the summary dismissal of his petition for writ of habeas corpus filed pursuant to K.SA. 60–1501. He was disciplined pursuant to K.A.R. 44–12–401 for failing to follow a work directive. Boydston argues he did not clean up the debris as ordered because it was a bird nest protected by federal law. He also claims several procedural errors by the hearing officer violated his right to due process. We affirm.
Boydston was an inmate at Ellsworth Correction Facility at the time of his violation. The disciplinary report alleges Boydston violated regulations 44–12–304 (Disobeying Orders, Class I) and 44–12–401(b) (Work Performance, Class II) on June 14, 2012. The disciplinary report provides the following factual basis as witnessed by Corrections Officer II Ballard:
“On 06/14/2012 at approx. 0630 I had checked the lights on the East exterior wall for debris. At approx. 0830 Major Murrell observed birds dragging grass and straw up onto the western most light on the South–East exterior wall of building 1. At approx. 1045 I advised I/M Boydston # 74231 that he was to take down the debris. I/M Boydston did not complete this task on that day.
“On 06/15/2012 Major Murrell was in the entry area when I addressed I/M Boydston again. At that time I/M Boydston stated that he did not take down the debris due to federal law protecting bird nests. At this time Major Murrell advised I/M Boydston that when he was given the directive to remove the debris, it was not a nest.
“Due to the fact that I/M Boydston did not promptly obey the directive given by myself on 06/14/2012 to remove the debris he is in direct violation of 44–12–304 disobeying orders. In addition due to I/M Boydston being at work during this violation and he did not perform work assigned to him, he is also in direct violation of 44–12–401 work performance (b).”
A disciplinary hearing officer found Boydston guilty of violating the work performance regulation, K.A.R. 44–12–401(b), for failure to perform work duties, but dismissed the disobeying order charge. Boydston called two witnesses on his behalf, but the hearing officer denied his request to call eight additional witnesses. The hearing officer found that Boydston's violation was a work performance issue and it was his duty to follow work directives. The hearing officer held:
“Found guilty due to the written report and the testimonies of all parties concerned. In his testimony inmate Boydston states that he believed that removing this debris constituted a violation of federal law. It has been established through the KDWP that Finches are not a migratory bird and therefore not protected under federal law. It was confirmed by COH Ballard and Major Murrell the materials in question had not been fashioned into a complete nest and therefore was not subject to protection under this law. In her testimony COII Ballard testified that she gave inmate Boydston a directive to remove the debris from the area, inmate Boydston chose to ignore that directive. This hearing officer believes that the preponderance of the evidence makes it more likely true than not that inmate Boydston put himself in violation of 44–l2–401b, work performance.”
Boydston was sanctioned to 21 days restriction and a $10 fine. The Designee of the Secretary of Corrections affirmed Boydston's conviction and sanction.
Boydston's appeal to district court was summarily dismissed by the court for failing to state facts entitling him to relief. On appeal, Boydston argues the district court erred in dismissing his 60–1501 petition for failure to state a claim. He argues if he had followed the work directive, he would have been in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C.A. §§ 703–711 (2006) and the corresponding Kansas law at K.S.A. 32–1008. Boydston apparently had worked as a chimney sweep for a year where he learned something about the MBTA. He contends the hearing officer completely misunderstood the federal law and that an inmate has a right and duty to disobey any order from a correctional officer which would result in the inmate breaking state or federal law. We note evidence was presented on both sides concerning the MBTA. The finding that the MBTA was not involved was supported by “some evidence.”
Boydston also raised procedural due process violations in the disciplinary hearing process alleging the hearing officer was not acting in an impartial manner by considering outside evidence and that he was not allowed to present eight witnesses or relevant documents in his defense at the disciplinary hearing.
To determine whether 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). In reviewing a district court's summary dismissal for failure to state a claim, an appellate court must accept as true the allegations in the petition and determine if the facts alleged and their reasonable inferences state a claim for relief. See 285 Kan. at 679.
It does not appear that Boydston is challenging the facts surrounding his disciplinary violation. Instead, he is arguing he had a right to not perform the work request because of the MBTA. In reviewing a 60–1501 petition, we are required to uphold the prison officials' disciplinary action if there was “some evidence” to support the hearing officer's determination that the petitioner committed a violation. Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505 (1999) (citing Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 [1985] ). The violation in this case was failure to perform requested work.
“ ‘[T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced ...” [Citation omitted.] 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. [Citations omitted.]’ (Emphasis added.) 472 U.S. at 455–56.” Anderson v. McKune, 23 Kan.App.2d 803, 807–08, 937 P.2d 16 (1997).
We find there was sufficient evidence to support the hearing officer's decision. Officer Ballard testified there was no debris around the light at 6:30 a.m. on June 14, 2012. However, at 8:30 a.m., Major Murrell noticed 20–30 pieces of straw around the light and he instructed Officer Ballard to have an inmate clean up the debris. At approximately 10:45 a.m., Officer Ballard instructed Boydston, who was working at the time, that he was to take down the debris. Boydston did not remove the debris from around the light. Boydston failed to perform worked assigned to him and he was in violation of the prison work performance regulations, K.A.R. 44–12–401(b) (“Each inmate shall perform work assigned in the manner prescribed and according to the directives of the inmate's supervisor or other authorized official.”). There is evidence in the record to support the disciplinary board's conclusions and we will not disturb that ruling on appeal.
We also agree with the hearing officer's finding that the issue of the MBTA was not implicated in the disciplinary violation. The evidence presented at the hearing was that only debris existed around the light when Boydston was ordered to remove it. Major Murrell testified that only 20–30 pieces of straw were around the light at 8:30 a.m. and the debris had not been fashioned into a nest at the time of the work directive. Boydston asserts removal of the debris is a violation of the MBTA anyway. He makes a statement in his appellate brief that “[a]ny inmate has a right and duty to disobey any order from a correctional officer which would result in the inmate breaking a state or federal law if the order was followed .” Boydston does not support this statement with any authority—statutory or otherwise. Our independent research did not provide any authority to support this proposition either. Certainly, inmates have various personal/constitutional rights that are protected—religious beliefs, access to the courts, access to medical care, freedom from cruel and unusual punishment. See e.g., Wright v. Raines, 1 Kan.App.2d 494, 571 P.2d 26 (1977) (challenging prison shaving regulations on religious grounds); Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (a prisoner's right to court access); Farrow v. West, 320 F.3d 1235, 1239–41 (11th Cir.2003) (medical care); Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct 995, 117 L.Ed.2d 156 (1992) (free from malicious and sadistic application of excessive force). However, there are no constitutional rights personal to Boydston within the MBTA.
Boydston also argues his due process rights were violated when his requested witnesses were not allowed to testify and his requested exhibits were denied at the disciplinary hearing. Boydston had a fine imposed against him as punishment for his conviction, and “[t]he extraction of a fine does implicate the Due Process Clause even when, as here, the State has taken only a small amount from an inmate's prison account.” Anderson v. McKune, 23 Kan.App.2d 803, 807, 937 P.2d 16,rev. denied 262 Kan. 959, cert. denied522 U.S. 958, 118 S.Ct. 387, 139 L.Ed.2d 302 (1997). The question of whether due process has been given is a question of law subject to de novo review. State v. Moore, 35 Kan.App.2d 274, 285, 129 P.3d 630 (2006).
According to K.A.R. 44–13–101(c)(5), an inmate is allowed to have witnesses testify on his or her behalf at a disciplinary hearing. However, an inmate's right to call witnesses in a disciplinary hearing is not absolute. The hearing officer has broad discretion to determine whether to allow the inmate to call another inmate or a prison employee as a witness. See Wolff v. McDonnell, 418 U.S. 539, 566–67, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (noting that prison officials must be allowed discretion to refuse to call witnesses to accommodate the special needs of the prison); see also, K.A.R. 44–13–405a(a) and (b) (listing valid justifications for denying inmate witness requests and giving hearing officer broad discretion to permit or deny requests). The hearing officer shall balance the inmate's interest in avoiding loss of good time, assessment of a fine, or placement in disciplinary segregation against the needs of the facility. K.A.R. 44–13–405a(a) and (b). “If a request to call a witness is denied, a written explanation shall be made on the record unless it would endanger any person.” K.A.R. 44–13–405a(e).
Regarding the hearing officer's failure to call witnesses, Boydston conceded in his 60–1501 petition that 2 of the witness requests were not completed within 48 hours of the time he received the disciplinary report. See K.A.R. 44–13–306 (“Within 48 hours of service of the report, the inmate shall complete and submit the authorized form for witnesses to the disciplinary administrator.”). Boydston did not timely complete the request for witnesses Eno and Slechta.
Of the other witnesses denied by the hearing officer, Boydston does not allege that any of them were present at the time Officer Ballard gave him the work directive to clean up the debris around the light on June 14, 2012. Boydston's request for these witnesses concerns evidence that he had informed the prison staff of the MBTA and had previously cleaned up nests. We do not find the hearing officer abused his discretion in denying the witnesses concerning the prison staff's knowledge of the MBTA or the fact that the hearing officer did not take into evidence a copy of the MBTA. Any procedural errors or any misinterpretation of the MBTA by the hearing officer was harmless in light of the fact that Boydston's disciplinary report was the result of his failure to clean up debris around the light pursuant to a work directive on June 14, 2012. Any error was harmless. See State v. Ventris, 285 Kan. 595, 608, 176 P.3d 920 (2008), rev'd on other grounds Kansas v. Ventris, 556 U.S. 586, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009).
The question before us whether the trial court erred in summarily dismissing Boydston's 60–1501 petition. An appellate court's standard of review over a trial court's summary dismissal of a 60–1501 petition is well established. K.S.A.2012 Supp. 60–1503(a) authorizes the summary dismissal of a habeas corpus petition if it plainly appears from the face of the petition and any exhibits attached to the petition that the plaintiff is not entitled to relief in the trial court. To avoid summary dismissal, the allegations must be of a constitutional nature. We do not believe Boydston has demonstrated facts that show he is entitled to relief, i.e., “shocking and intolerable conduct or continuing mistreatment of a constitutional nature,” and the district court did not err in granting summary dismissal of his petition. Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008)
Affirmed.