Hunt v. Schnurr

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NOT DESIGNATED FOR PUBLICATION

No. 120,174

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHRISTOPHER HUNT,
Appellant,

v.

DANIEL SCHNURR, et al.,
Appellees.

MEMORANDUM OPINION


Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed June 21, 2019.
Affirmed.

Daniel J. Wernert, of Wernert Law LLC, of El Dorado, for appellant.

Joni Cole, legal counsel, El Dorado Correctional Facility, for appellees.

Before BUSER, P.J., PIERRON and BRUNS, JJ.

PER CURIAM: After being convicted of six disciplinary violations, Christopher
Hunt, an inmate at El Dorado Correctional Facility, filed a K.S.A. 2017 Supp. 60-1501
petition, alleging prison officers had violated his rights under the Due Process Clause of
the United States Constitution. The district court summarily dismissed Hunt's petition,
holding that Hunt had failed to state a claim for relief and some evidence supported his
disciplinary convictions. Hunt appeals. Finding no error, we affirm.

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FACTS

On January 14, 2018, at approximately 12:30 a.m., an officer responded to the
sound of something hitting a cell door and found Hunt fighting with inmate Harold
Richardson. Shortly afterwards, an officer found two razor blades, two pipes, two small
pieces of aluminum, one wire, two partially rolled cigarettes, and a small amount of green
leafy substance in Hunt's cell. Hunt was charged with fighting, dangerous contraband,
and tobacco contraband.

A couple of hours later, an officer found the tied-off fingertip of a glove with a
white powdery substance inside, a razor blade, a bottle of clear urethane adhesive, and a
bottle of something called "Prism PEARLS" in Hunt's cell. Hunt was charged with
dangerous contraband. Another officer found a "homemade stabbing device" in Hunt's
cell and charged him with dangerous contraband. Several hours after that, an officer
found a television remote with the name and serial number scratched off in Hunt's cell
and he was charged with theft.

A hearing was held on January 26, 2018. Hunt asked to call CSI Disciplinary
Officer Johnson and Captain Mansfield as witnesses. He also asked to have Mansfield
serve as a staff assistant. Finally, he requested a continuance to prepare his defense. His
request for a continuance was granted.

On February 8, 2018, Hunt called in for a hearing. The hearing officer denied
Hunt's request for a staff assistant, finding that Hunt was able to represent himself. Hunt
acknowledged receipt of his disciplinary reports and summons within the appropriate
time limits and entered a plea of not guilty. He submitted a witness list and asked to call
Richardson, but Richardson refused to participate in the hearing process. The hearing
officer continued the hearing for the reporting officers' testimony.

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On February 12, 2018, another hearing was held, presided over by CSI Johnson.
All but one of the reporting officers appeared, as did Hunt. Johnson asked several
questions of one reporting officer. Johnson then had Hunt removed for arguing. CSI
Austin was assigned as Hunt's staff assistant and stated neither he nor Hunt had anything
to add. The reporting officers stated their reports stood as written. Johnson found Hunt
guilty of all charged violations.

The warden approved Hunt's convictions and Hunt appealed them to the Secretary
of Corrections. He then filed a K.S.A. 60-1501 petition, claiming violations of Kansas
administrative regulations and his due process rights. In his petition, he stated his
imprisonment was unlawful because of "all said violations included in attachments." His
attachments included the record of the disciplinary proceedings for his violations.

He also claimed that "per policy and procedure," the prison officers involved
should have: (1) taken photographs after his fight with a fellow inmate; (2) filed a "shake
down sheet" listing what was confiscated; (3) photographed any confiscated contraband;
(4) tested any confiscated substances; (5) had him submit to urinary analysis testing to
prove he was the one taking any confiscated substances; and (6) provided him with an
opportunity for independent testing of any confiscated substances. He also claimed the
officers had been given permission to file false reports against him, and he had been
convicted in a previous case even when video footage validated his claim.

The district court summarily dismissed Hunt's petition. The court first held that
Hunt had failed to state a claim for relief. The court noted that inmates have limited due
process rights, and Hunt had received those rights. The court added that Hunt "cannot be
heard to complain if he fails to participate in the hearing or becomes so unruly that he
must be removed prior to its completion." The court also found that Hunt's convictions
were supported by some evidence, and the hearing officer had made a sufficient record of
the hearings and his findings. Finally, the court held that "nothing complained of by Hunt
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as to internal 'protocol matters' is of such a nature or character as to shock the general
conscience of the court or be intolerable to fundamental fairness." Hunt appeals.

ANALYSIS

Failure to State Claim for Relief

On appeal, Hunt argues the district court erred in summarily dismissing his
petition for failure to state a claim for relief. To state a claim for relief under K.S.A. 60-
1501, a petition must allege "shocking and intolerable conduct or continuing
mistreatment of a constitutional stature." Johnson v. State, 289 Kan. 642, 648, 215 P.3d
575 (2009). "[I]f, on the face of the petition, it can be established that petitioner is not
entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as
those recited in a court record, it appears, as a matter of law, no cause for granting a writ
exists," then summary dismissal is proper. 289 Kan. at 648-49; see K.S.A. 2018 Supp.
60-1503(a). An appellate court exercises unlimited review of a summary dismissal.
Johnson, 289 Kan. at 649.

We apply a two-step analysis when the petitioner alleges he or she was denied due
process. First, we must determine whether the State has deprived the petitioner of life,
liberty, or property. If so, then we must determine the extent and nature of the process
due. 289 Kan. at 649.

Hunt received a monetary fine for each of his six disciplinary convictions, ranging
from $5 to $20. A monetary fine implicates a protected property interest. Sauls v.
McKune, 45 Kan. App. 2d 915, 920, 260 P.3d 95 (2011).

Because Hunt has shown an implicated liberty or property interest, this court must
now determine the extent and nature of the process due. In prison disciplinary
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proceedings, an inmate's procedural due process rights are generally limited to written
notice of the charges, an impartial hearing, an opportunity to call witnesses, an
opportunity to present documentary evidence, and a written statement from the hearing
officer on the findings and reasons for the decision. In re Habeas Corpus Application of
Pierpoint, 271 Kan. 620, 627-28, 24 P.3d 128 (2001); Swafford v. McKune, 46 Kan. App.
325, 329, 263 P.3d 791 (2011). If an inmate's constitutional rights are violated in a
disciplinary hearing, such an error may be deemed harmless if this court can declare
beyond a reasonable doubt that the error did not affect the outcome of his disciplinary
hearing. See Sauls, 45 Kan. App. 2d at 921.

When reviewing a district court's summary dismissal of a petition for failure to
state a claim upon which relief can be granted, we must accept the plaintiff's alleged facts
as true. "The court must determine whether the alleged facts and all their inferences state
a claim, not only on the theories set forth by the plaintiff, but on any possible theory."
Washington v. Roberts, 37 Kan. App. 2d 237, 240, 152 P.3d 660 (2007).

Hunt argues he was denied an impartial hearing and an unbiased hearing officer.
He makes several allegations to support his claim: (1) He was forced to appear at the
hearing by phone instead of in person; (2) Johnson removed him from the hearing for
asking one question; (3) Johnson denied two of his witness requests without explanation;
and (4) Johnson lied in the record about Austin's role as staff assistant. He also claims
officers destroyed his personal property and falsified reports against him.

Presence at Hearing

Hunt claims that he was denied his right to be present at his hearing. An inmate's
right to be present at a disciplinary hearing is not absolute and "may be limited by the
competing concerns of maintaining institutional safety and other correctional goals."
Hogue v. Bruce, 279 Kan. 848, 852, 113 P.3d 234 (2005). If an inmate is "disruptive or
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refuses to be present," the hearing officer may hold the hearing in the inmate's absence.
K.A.R. 44-13-403(d). In that case, the hearing officer must assign a staff assistant to aid
the inmate, and the hearing officer must state on the record the reason for the inmate's
absence. K.A.R. 44-13-403(d).

While inmates generally carry the burden of proof in habeas proceedings, when
prison officials deny inmates some aspect of procedural due process, the "'burden of
persuasion as to the existence and sufficiency of such institutional concerns is borne by
the prison officials, not by the prisoners.'" Hogue, 279 Kan. at 853 (quoting Grandison v.
Cuyler, 774 F.2d 598, 604 [3d Cir.1985]). Prison officials may meet this burden by
providing an explanation in either the disciplinary hearing record or through testimony
presented in court. Hogue, 279 Kan. at 853 (quoting Ponte v. Real, 471 U.S. 491, 497,
105 S. Ct. 2192, 85 L. Ed. 2d 553 [1985]). The hearing officer's reason cannot be
arbitrary but must logically relate to maintaining institutional safety or correctional goals.
Hogue, 279 Kan. at 853.

Hunt argues his due process rights were violated because he was forced to appear
at the hearing by phone instead of in person. The record shows that he appeared by phone
at one of the three hearings, though it does not say whether he appeared by phone at the
other two. But Hunt provides no support for his argument that due process required that
he appear at the hearing in person rather than by phone. See University of Kan. Hosp.
Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d 602 (2015)
(holding failure to support a point with pertinent authority is like failing to brief the
issue). In fact, administrative regulations give hearing officers the discretion to conduct
hearings by phone when an inmate is in administrative or disciplinary segregation.
K.A.R. 44-13-404(e).

Hunt also alleges Johnson arbitrarily removed him from the hearing. The
disciplinary hearing record states: "Offender became argumentative towards this [hearing
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officer] and was directed to correct this behavior. The offender continued to argue with
[this hearing officer]. Offender removed from hearing due to his behavior." But Hunt
claims Johnson removed him for asking a single question.

As noted, prison officials bear the burden of showing Hunt's removal related to
some institutional concern. Because the district court held no evidentiary hearing, the
disciplinary record must include an explanation for Hunt's removal to meet this burden.
"[T]here must be a factual basis to support the reasons given by prison officials which
satisfies the prison officials' burden of persuasion as to the sufficiency of the concern."
Hogue, 279 Kan. at 854. Johnson explained in the record that Hunt was argumentative.
He asked Hunt to correct his behavior but Hunt continued to argue. It was only then that
Johnson had Hunt removed. The record thus provides at least a modicum of factual
support for Hunt's removal.

Hunt also states he was removed for asking Johnson a question. He appears to
claim this is part of his right to confront and cross-examine witnesses against him under
K.A.R. 44-13-101(c). But the hearing officer was not a witness against him. Hunt never
denied that the question was argumentative. For the first time on appeal, he states only
that he did not believe the question was "argumentative in a way that should have
prevented him from participating." Thus, Hunt's own allegations appear also to provide a
factual basis for the decision to remove him.

Right to Call Witnesses

Hunt argues his witness requests were denied "without cause shown." Under
administrative regulations, an inmate is entitled to have witnesses called to testify on his
or her behalf at a disciplinary proceeding. K.A.R. 44-13-101(c)(5). To request a witness,
an inmate must submit an authorized form that states the expected testimony from each
requested witness. K.A.R. 44-13-306. The hearing officer has broad discretion in granting
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or denying an inmate's witness request. K.A.R. 44-13-405a(b). The hearing officer may
deny a request if the proffered testimony is irrelevant, repetitious, or if the prison's needs
outweigh the inmate's interests. See K.A.R. 44-13-307; K.A.R. 44-13-405a(a). If a
hearing officer denies a request, the record must contain a written explanation for the
denial. K.A.R. 44-13-405a(e); see also Ponte, 471 U.S. at 497 (holding prison officials
required to justify why witnesses are not allowed to testify, either by making explanation
part of administrative record or by presenting testimony in court).

The record suggests that Hunt submitted the necessary forms to request three
witnesses: Johnson, Mansfield, and Richardson. The record also shows that Richardson
refused to participate in the hearing process. But nothing in the record shows why
Johnson and Mansfield did not testify.

However, Hunt does not explain, nor does the record show, how the outcome of
the hearing would have been different if Johnson and Mansfield had testified. Hunt
claims Mansfield made a statement to him "about Richardson['s] . . . demeanor and
behavior at the time of said event vs. defendant['s] calm, non-irractic [sic] [illegible]
demeanor and behavior. How can this be justified as NOT being relevant testimony to an
impartial hearing officer only trying to get to the truth per law and policy?"

Mansfield's purported statement appears related to Hunt's fighting charge. In his
petition, Hunt claimed he "was in combat and then proceeded to defend himself of which
he has the right to, especially as a senior." Self-defense is an affirmative defense to a
fighting violation. Hunt bore the burden to prove he was acting in self-defense. See
K.A.R. 44-12-301(b) (2017 Supp.). Presumably, Hunt wanted Mansfield's testimony to
show Richardson was the aggressor. But the proffered testimony from Mansfield would
have provided little, if any, support for Hunt's argument. His comment about the
testimony's relevancy suggests he was informed of the reason for the denial of his
request. Thus, any possible error here was harmless.
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There is also a handwritten note in the record that appears to explain why he called
Johnson as a witness, but it is illegible.

Fabricated Record

Hunt alleges that Johnson fabricated the hearing record, proving that Johnson was
biased against him. Hunt claims he never spoke with Austin after Austin was assigned as
staff assistant. Because of this, Hunt claims Johnson must have lied when he wrote that
"CSI Austin, B. . . . states he nor the Offender wish to add anything." Hunt also says that
Austin "told me directly that he was never told that I was in contempt."

But even if these facts were true, they do not show that Johnson fabricated the
record. Austin was assigned as a staff assistant for Hunt after Hunt's removal, as required
by K.A.R. 44-13-403(d). See K.A.R. 44-13-408. Since Austin was acting on Hunt's
behalf, it would not necessarily be a lie for him to say Hunt had nothing to add. And Hunt
does not deny that Austin was assigned as staff assistant. He only claims that Austin did
not know why Hunt had been removed from the hearing. Hunt does not explain how this
proves Johnson fabricated the record. Thus, this argument is meritless.

Destruction of Property

Hunt claims that prison officials "destroyed his personal property in a concerted
act of retaliation." In his petition, Hunt stated the contraband that prison officers had
confiscated was destroyed, violating his right to test independently any allegedly illegal
substances. The record does show that the confiscated contraband was destroyed. But, the
record also shows the contraband consisted mostly of items that need not be tested. For
instance, officers confiscated pipes, which are tobacco contraband, and a "stabbing
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device," which is dangerous contraband. See K.A.R. 44-12-901(a); K.A.R. 44-12-
903(a)(3).

But for the first time on appeal, Hunt alleges that officers confiscated "legal
research, records, and possible evidence related to a different case." Hunt did not raise
this claim before the district court, thus it is not properly before this court on appeal.
Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). And nothing
in the record supports this allegation.

Falsified Reports

In his petition, Hunt also alleged: "Officers allowed, and even given permission by
administration to activate agitation initiative against Petitioner. Falsify reports under the
penalty of perjury and yet even when camera footage validated Petitioner's claim. He was
still wrongfully convicted. Case 17-12-028." On appeal, Hunt claims "reports used
against him were falsified under penalty of perjury, and that he was prevented from
showing camera footage which would have validated his claim." But looking at Hunt's
petition, his claim about the camera footage appears related to a prior conviction not part
of this appeal. As for his claim that officers falsified reports, this is a conclusory
allegation unsupported by any alleged facts or anything in the record.

Evidence Supporting Convictions

Hunt claims the evidence did not support one of his convictions. When an inmate
challenges the basis for the hearing officer's decision, due process demands only a
modicum of evidence to support the disciplinary sanction "to prevent arbitrary
deprivations without threatening institutional interests or imposing undue administrative
burdens." Superintendent v. Hill, 472 U.S. 445, 454-55, 105 S. Ct. 2768, 86 L. Ed. 2d 356
(1985). In prison disciplinary proceedings, due process demands only that some evidence
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in the record support a hearing officer's decision. 472 U.S. at 455; see Sammons v.
Simmons, 267 Kan. 155, 158-59, 976 P.2d 505 (1999). Determining whether this standard
is satisfied does not require the reviewing court to examine the entire record, make an
independent assessment of witness credibility, or reweigh the evidence. The relevant
question is whether there is any evidence in the record to support the conclusion reached
by the disciplinary authority. Sammons, 267 Kan. 155, Syl. ¶ 3.

On appeal, Hunt challenges only the evidence, or lack thereof, supporting his
conviction for fighting. He does not challenge the evidence supporting his other
convictions. Thus, he has waived and abandoned any argument on this point. In re
Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018) (holding issues not
adequately briefed are considered waived or abandoned).

That said, there does appear to be at least some evidence supporting his other
violations. Officers found razor blades, pipes, pieces of aluminum, wire, partially rolled
cigarettes, and a green leafy substance on a desk in Hunt's cell as well as on a shelf above
the desk. They found a razor blade under Hunt's mattress and a bottle of adhesive in his
cabinet. They found the stabbing device on the floor near the back of Hunt's cell. They
also found a remote with the name and serial number scratched off. While the evidence of
Hunt's violations may not be overwhelming, at least "some evidence" supports his other
convictions.

Hunt argues that the evidence does not support his conviction for fighting because
the reporting officer did not appear at the hearing or otherwise provide sworn testimony.
Fighting is a class I violation. K.A.R. 44-12-301(c) (2017 Supp.). In class I cases, the
charging officer must be present at the hearing, either in person or by phone, unless
excused by the hearing officer. A hearing officer may excuse the charging officer only if
one of several statutory conditions are present. If the hearing officer excuses the charging
officer from appearing, the hearing officer must document the reason. And if the charging
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officer is not present at the hearing, "the officer's report and statement shall be made to
the hearing officer in writing under oath." K.A.R. 44-13-404(b)(1)(D).

Here, the charging officer did not appear at the hearing. The record states only that
"[Charging officer] unable to participate." This is not one of the statutory reasons for
excusing a charging officer. And the record does not show that the hearing officer took
the charging officer's statement in writing under oath. Thus, the hearing officer appears to
have violated the applicable regulations.

A hearing officer's failure to comply with a regulation does not necessarily
establish a due process violation, unless the failure violates fundamental fairness and
rises to an unconstitutional level. See Washington, 37 Kan. App. 2d at 242. That is not
the case here. Despite Johnson's failure to take testimony from the charging officer, the
disciplinary report still provides some evidence of Hunt's guilt. In the report, the charging
officer declared under penalty of perjury that he saw Hunt and Richardson fighting. Hunt
also admitted in his petition that he fought with Richardson. He also included an affidavit
from Richardson stating "an altercation occurred due to a misunderstanding on my
behalf." Whether Hunt was fighting does not appear to have ever been at issue. Thus,
some evidence supports this conviction and Johnson's failure to have the charging officer
testify does not violate fundamental fairness.

Affirmed.