Swafford v. McKune

1

No. 104,965

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ARTIS SWAFFORD,
Appellant,

v.

DAVID MCKUNE,
Appellee.


SYLLABUS BY THE COURT


1.
The question of whether due process under the Fourteenth Amendment to the
United States Constitution exists in a particular case is a question of law.

2.
An appellate court gives broad deference to prison officials in maintaining
discipline in prison settings.

3.
Although there must be mutual accommodation between the institutional needs of
prisons and the rights of prisoners in disciplinary proceedings, the full panoply of rights
due a defendant in a criminal proceeding does not apply.

4.
In prison disciplinary proceedings, prison officials must follow certain due process
procedures, including a written notice of the charges to enable inmates to prepare a
defense, an impartial hearing, the opportunity to call witnesses and present documentary
2

evidence, and a written statement from the hearing officer as to the findings and the
reasons for the decision.

5.
In a prison disciplinary proceeding, due process does not require that prison
security videos be made available to an inmate or that an inmate be present when a
hearing officer reviews a security video.

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed August 26,
2011. Affirmed.

Rhonda K. Levinson, of Levinson & Levinson PA, of Basehor, for appellant.

Matthew J. Donnelly, legal counsel, Lansing Correction Facility, for appellee.

Before GREENE, C.J., MALONE and BRUNS, JJ.

BRUNS, J.: Artis Swafford, an inmate at Lansing Correctional Facility (LCF),
appeals the district court's denial of his K.S.A. 60-1501 petition. He contends that his due
process rights were violated during the course of a prison disciplinary proceeding. For the
reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Swafford was accused of lewd acts and misconduct with a female visitor in a
visiting room at LCF on July 26, 2009. The incident was witnessed by two prison officers
who were viewing monitors displaying images from the visiting room. In the disciplinary
report, which was served on the same date, Swafford was charged with "reach[ing] his
hand into his visitor's shirt sleeve to fondle her right breast" in violation of K.A.R. 44-12-
315 and K.A.R. 44-12-321.
3

Prior to the disciplinary hearing, Swafford moved to dismiss the charges set forth
in the disciplinary report. The motion was denied and the matter proceeded to hearing. In
addition, Swafford filed an "Inmate Request for Witness" on July 29, 2009, in which he
requested certain documents.

The disciplinary hearing began on August 3, 2009, and the hearing officer denied
Swafford's request for documents. The hearing officer did, however, grant Swafford a
continuance so that he would have the opportunity to request the video from the
surveillance camera. Two days later, on August 5, 2009, Swafford filed a second "Inmate
Request for Witness," seeking:

"Video or digital description of the alleged violation of law or rule, from the medium
visiting room, as is described in disciplinary report #258. Requesting to be allowed to
personally review the video during the hearing, or have the hearing officer review the
video outside of my presence during the hearing and be provided a summary of the
content of the video, so that questions and follow-up questions may be asked."

The following day, Swafford filed another request asking that the video be made
available for the hearing, which was scheduled to resume at 1 p.m. on August 10, 2009.

At the disciplinary hearing, Swafford testified on his own behalf, but he did not
challenge the sufficiency of the evidence against him, nor did he present any
documentary evidence. Rather, Swafford argued that he had not been adequately
informed of the charges against him because reaching under his visitor's sleeve "to
fondle" her breast, as alleged in the disciplinary report, was substantially different from
actually fondling her breast.

Officer E. Zamora, who had written the disciplinary report on July 26, 2009,
testified that he "witnessed [Swafford's] hand go up [the visitor's] shirt and he was
fondling her breast." Likewise, Officer Jenkins testified that he was watching the visiting
4

room on the monitor and also saw Swafford "put his hand up [the visitor's sleeve], reach
up, and touch her breast." Although Swafford had the opportunity to cross-examine the
officers, it appears from the record that he did not do so.

At the conclusion of the disciplinary hearing, Swafford was found by the hearing
officer to be guilty of violating K.A.R. 44-12-315 and K.A.R. 44-12-321. A $20 fine was
imposed in addition to other sanctions. In a written decision, the hearing officer explained
that his findings and conclusions were "[b]ased on the facts provided by video evidence
that clearly shows inmate Swafford['s] hand go into his visitor['s] sleeve" and "upon
having [his] hand in her shirt[,] it is clear also . . . that inmate Swafford was fondling his
visitor['s] breast." The hearing officer further explained that the testimony of Officer
Zamora also "made it clear that inmate Swafford was fondling the breast of his visitor."

On August 14, 2009, the hearing officer's decision was approved by the warden.
On appeal to the Secretary of Corrections the finding of a violation of K.A.R. 44-12-315
was approved and the finding of a violation of K.A.R. 44-12-321 was disapproved. On
December 3, 2009, Swafford filed a petition in district court pursuant to K.S.A. 60-1501.
The K.S.A. 60-1501 action was initially dismissed for failure to exhaust administrative
remedies. It was later reinstated, and Swafford filed an amended petition alleging various
due process violations.

On April 6, 2010, the district court held an evidentiary hearing on the amended
petition. At the hearing, Swafford testified that he believed that there was not a
"sufficient charge" asserted against him and that he had not been given an adequate
opportunity to present "documentary evidence" during the disciplinary proceeding.
Swafford argued that he should have been allowed to see the security video, and he
claimed that the hearing officer had never reviewed the videotape.

5

On April 26, 2010, the district court entered a memorandum decision in which it
denied the K.S.A. 60-1501 petition and dismissed the case. In doing so, the district court
found:

"[T]he appellate courts of Kansas have directed that the procedure to be followed by the
hearing examiner during disciplinary hearings, as well as the general rule, [is] that prison
officials are given flexibility in executing internal prison policies and procedures.
Anderson v. McKune, 23 Kan. App. 2d 803, 937 P.2d 16 (1997). K.A.R. 44-13-403
directs the hearing officer, to the extent possible, discover the truth regarding charges
against the inmate. If the hearing officer decides to review security video, . . . 'the inmate
shall not be present when the hearing officer reviews any facility security videotape
evidence.' Further that regulation permits the hearing officer to bring out the facts by
direct or cross-examination."

The district court concluded that the State had met the "some evidence" standard
for prison disciplinary proceedings set forth in Sammons v. Simmons, 267 Kan. 155, 158-
159, 976 P.2d 505 (1999). The district court also found that "[t]he testimony bore out that
there was actual touching" of the visitor's breast in violation of the lewd acts regulation.
Thus, the district court denied the K.S.A. 60-1501 petition, and Swafford timely appealed
to this court.

ISSUE PRESENTED AND STANDARD OF REVIEW

On appeal, the issue presented is whether Swafford's procedural due process rights
were violated during the course of the prison disciplinary proceeding. The question of
whether due process under the Fourteenth Amendment to the United States Constitution
exists in a particular case is a question of law. See In re Habeas Corpus Application of
Pierpoint, 271 Kan. 620, Syl. ¶ 4, 24 P.3d 128 (2001).




6

Due Process Requirements

An appellate court gives broad deference to prison officials in maintaining
discipline in prison settings. See Anderson v. McKune, 23 Kan. App. 2d 803, 809, 937
P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997). Although there
must be mutual accommodation between the institutional needs of prisons and the rights
of prisoners in disciplinary proceedings, the full panoply of rights due a defendant in a
criminal proceeding does not apply. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct.
2963, 41 L. Ed. 2d 935 (1974).

In prison disciplinary proceedings, officials must follow certain due process
procedures, including a written notice of the charges to enable inmates to prepare a
defense, an impartial hearing, the opportunity to call witnesses and present documentary
evidence, and a written statement from the hearing officer as to the findings and the
reasons for the decision. Pierpoint, 271 Kan. at 627-28; see Washington v. Roberts, 37
Kan. App. 2d 237, Syl. ¶ 3, 152 P.3d 660 (2007).

APPLICATION OF DUE PROCESS REQUIREMENTS

Adequacy of the Notice of Charges

A review of the disciplinary report served on July 26, 2009, reveals that it clearly
identifies the regulations which Swafford was accused of violating. Likewise, it concisely
summarizes the facts alleged by the prison officers in support of the charges. The
disciplinary report also includes a summary of what the officers claimed to have seen on
the surveillance camera located in the visiting room. Thus, we find that the disciplinary
report gave Swafford adequate notice of the nature of the charges so that he could prepare
a defense.


7

Impartial Hearing

Although Swafford contends that the hearing officer was not an impartial fact
finder, he has offered nothing but his own self-serving testimony in support of this
allegation. From a review of the record, we find no evidence of bias or prejudice on the
part of the hearing officer. In fact, the record reflects that the hearing officer was very
lenient in granting Swafford's request for a continuance after the disciplinary hearing
began in order to give him an opportunity to make a request for the videotape. Thus, we
find that Swafford received a fair and impartial hearing.

Opportunity to Call Witnesses and Present Documentary Evidence

The record reflects that Swafford had the opportunity to call witnesses and present
documentary evidence at the disciplinary hearing. Although it appears that he did not take
advantage of the opportunity, Swafford could have cross-examined both of the officers
who claimed to have seen him fondle the breast of a female visitor. It is also important to
recognize that Swafford submitted two "Inmate Request for Witness" forms, but both of
the forms were submitted more than 48 hours after he was served with the disciplinary
report. As such, the "Inmate Request for Witness" forms were untimely pursuant to
K.A.R. 44-13-306.

Swafford contends that the hearing officer did not review the security video. In
explaining the reasons for his decision, however, the hearing officer explicitly stated that
"[b]ased on the facts provided by video evidence that clearly shows inmate Swafford['s]
hand go into his visitor['s] sleeve . . . it is clear also by evidence that inmate Swafford
was fondling his visitor['s] breast." (Emphasis added.) Hence, a fair reading of the
hearing officer's decision leads us to the conclusion that he did review the security video
prior to making his final determination.

8

Pursuant to K.A.R. 44-13-403(l)(1), "the accused inmate shall not be present when
the hearing officer reviews any facility security videotape evidence." Although the
dissent believes that prison security videos should be made generally available to inmates
in prison disciplinary proceedings, Swafford does not challenge the constitutionality of
K.A.R. 44-13-403(l)(1). In fact, he requested that the security video either be produced to
him or viewed by the hearing officer outside his presence. Because we find that the
hearing officer reviewed the security video, we conclude that Swafford's due process
right to present documentary evidence was adequately protected.

The dissent cites Howard v. United States Bureau of Prisons, 487 F.3d 808 (10th
Cir. 2007), for the proposition that a prison official's refusal to produce a potentially
exculpatory videotape violates an inmate's due process right to present documentary
evidence in a disciplinary hearing. A review of the Howard decision reveals that it is
distinguishable from the present case in that the hearing officer refused to consider the
security video, which purportedly showed that an inmate had acted in self-defense in
fighting with another inmate. Moreover, in Howard, there was not a regulation in place
similar to K.A.R. 44-13-403(l)(1), authorizing that a security video be reviewed outside
the presence of the inmate.

As the dissent candidly admits, federal courts are not in agreement on this issue.
For example, the Seventh Circuit recently held in Estrada v. Holinka, No. 10-3313, 2011
WL 1740118, at *2 (7th Cir. 2011) (unpublished opinion), that it was not a violation of
an inmate's due process rights to be denied the opportunity to view a surveillance video in
a prison disciplinary proceeding. See Alexander v. Schleder, __ F. Supp. 2d __, 2011 WL
1811048, at *7 (E.D. Cal. 2011) (An inmate's due process rights were not violated where
hearing officer relied on prison officer's "statement regarding his summary of the
contents of the videotape evidence."); see also Carter v. Lawler, No. 4:10-CV-01266,
2011 WL 2462016, at *11 (M.D. Pa. 2011) ("[B]ecause disciplinary officials are entitled
9

to rely upon staff members' descriptions of video evidence, the decision of the [hearing
officer] not to view the video evidence does not amount to a violation of due process.").

Although we agree with the dissent that it would be worthwhile for the Secretary
of Corrections to review the existing regulations to determine if new procedures for
requesting and presenting documentary evidence should be implemented, we do not agree
that due process requires that prison security videos be made available to inmates who are
the subjects of prison disciplinary proceedings. Thus, we find that Swafford was provided
with a reasonable opportunity to cross-examine the witnesses who brought the charges
against him, to call witnesses on his own behalf, and to present documentary evidence at
the disciplinary hearing.

Written Findings and Reasons for the Decision

At the conclusion of the disciplinary hearing, a written decision was prepared by
the hearing officer and was provided to Swafford. The decision included the hearing
officer's factual findings and stated the reasons for his decision. It also summarized the
testimony given by Swafford and the two prison officers who witnessed the alleged
infractions on July 26, 2009. Moreover, it described what was observed on the security
video. Thus, we find that the hearing officer provided Swafford with written findings and
the reasons for his decision.

CONCLUSION

We conclude that Swafford was provided with all of the due process protections
required by the Fourth Amendment to the United States Constitution. We also conclude
that in a prison disciplinary proceeding, an inmate does not have the right to be present
when the hearing officer views a security video. Finally, we conclude that the district
10

court was correct in finding that there was sufficient evidence in the record to support the
determination that Swafford violated K.A.R. 44-12-315.

Affirmed.

* * *

GREENE, C.J., dissenting: I respectfully disagree with my colleagues, who
conclude that Swafford was not denied due process in his prison disciplinary proceeding.
I believe that fundamental due process requires that a prison security video of the incident
giving rise to the disciplinary report should generally be available to the inmate—subject
only to reasonable security concerns, and its unavailability to Swafford here has revealed
that the applicable regulations are inadequate and do not comport with due process
principles that our appellate courts have consistently required in such proceedings.
Moreover, the majority's emphasis on the sufficiency of evidence is irrelevant to
Swafford's due process challenge; we have never held that sufficient evidence excuses a
challenge to the due process afforded an accused.

The procedural facts are as set forth by the majority. Critical is that Swafford was
permitted to file a request for the video, which sought:

"Video or digital description of the alleged violation of law or rule, from the medium
visiting room, as is described in disciplinary report #258. Requesting to be allowed to
personally review the video during the hearing, or have the hearing officer review the
video outside of my presence during the hearing and be provided a summary of the
content of the video, so that questions and follow-up questions may be asked."

Swafford never received the video or a summary thereof, and the matter proceeded
to hearing despite Swafford's request for another continuance. The hearing officer found
Swafford guilty of both charges and imposed a $20 fine. No explanation is provided in
11

the record for denying production of this evidence to Swafford. Although the majority
references a "written decision" of the hearing officer, the only record of the hearing
officer's decision in the record on appeal is a cryptic transcription or summary of the
hearing that is arguably ambiguous on the question of the hearing officer's review of the
videotape. Although it reports a basis in the "facts provided by video evidence," it cannot
be determined whether this means the officer actually reviewed the video or merely that
the accusing officer testified to what the video depicted.

Swafford appealed the decision, and the secretary vacated the charge of
misconduct but affirmed the conviction of lewd acts. Swafford then filed his 60-1501
petition. After an evidentiary hearing, the district court dismissed Swafford's petition.
With regard to Swafford's due process issue, the court's memorandum relied in part on
"the general rule that prison officials are given flexibility in executing internal prison
policies and procedures," citing Anderson v. McKune, 23 Kan. App. 2d 803, 937 P.2d 16,
rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997).

On appeal Swafford argues "[t]he combination of the failure to allow him a
continuance, plus his [in]ability to view the video evidence against him, prevented Mr.
Swafford from being able to prepare an adequate defense against the disciplinary charges
against him."

Our appellate courts have often addressed the extent of due process rights due an
inmate in prison disciplinary proceedings, but we have not often addressed the inmate's
right to request, view, or present video evidence. As recognized by the majority, the
United States Supreme Court has recognized that there must be mutual accommodation
between institutional needs and objectives and the prisoner's rights and that the full
panoply of rights due a defendant in criminal proceedings does not apply. Wolff v.
McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).

12

As noted by the majority, our appellate courts have recognized the inmate's due
process right to call witnesses and, more importantly for this case, present documentary
evidence. Shepherd v. Davies, 14 Kan. App. 2d 333, 789 P.2d 1190 (1990); the Shepherd
panel also clearly held that when the inmate is denied these rights, he or she should be
provided the reasonable basis for such a denial. The panel stated:

"No rationale was ever provided by prison officials for their decision to deny
Shepherd his requested witness. Although counsel for respondents has advanced some
possible reasons for the prison officials' decision, such post-hoc hypothesizing does not
allow this court to determine whether the prison officials' decision was actually based on
these reasons or was purely arbitrary. Even if the decision was based on factors permitted
under K.S.A. 44-13-405a(a) and (e), these factors may not meet constitutional due
process requirements." 14 Kan. App. 2d at 337-38.

See Washington v. Roberts, 37 Kan. App. 2d 237, Syl. ¶ 3, 152 P.3d 660 (2007).

The Tenth Circuit has held that a penal institution's refusal to produce and review
a potentially exculpatory videotape violates the inmate's due process right to present
documentary evidence in his or her own defense. Howard v. United States Bureau of
Prisons, 487 F.3d 808 (10th Cir. 2007). The court noted that a videotape of the incident
giving rise to the disciplinary charges would "have constituted significant, perhaps
conclusive, evidence that might exonerate [the inmate] of the acts charged against him."
487 F.3d at 815. Notably, in Howard, as in this case before us, the institution never
asserted, nor did the record support, a conclusion that producing the videotape would be
unduly hazardous to institutional safety. 487 F.3d at 814.

Other federal circuits have held that the penal institution must disclose all
exculpatory evidence in prison disciplinary proceedings. See, e.g., Chavis v. Rowe, 643
F.2d 1281, 1285-86 (7th Cir. 1981). The due process right recognized by these courts is
not merely that such evidence be considered but that it be produced to the inmate to
13

enable him or her to construct a defense. See Saleh v. Davis, No. 09-CV-02607, 2011 WL
334321 at *2 (D. Colo. 2011) (refusal to produce the video of an incident after it is
requested by a prisoner prior to a disciplinary hearing can violate prisoner's due process
rights). Granted, the federal circuits are not in lockstep on these issues. See, e.g., Howard
v. Werlinger, 403 Fed. Appx. 776, 2010 WL 5027169 at *1 (3d Cir. 2010) (unpublished
opinion).

With these general principles in mind, I believe we must carefully examine KDOC
regulations that may be applicable to the issue before us to determine whether they
comport with our appellate court's explication of applicable due process. Those
regulations clearly contemplate that the inmate may call witnesses, although such a
request may be denied if the need for any witness is outweighed by the needs of the
facility or would be cumulative or irrelevant. See K.A.R. 44-13-405a and 44-13-
403(n)(1)-(4). When 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).

There is no specific regulation on the inmate's right to subpoena or utilize
documentary evidence, except video evidence is contemplated by K.A.R. 44-13-
403(l)(1), which provides:

"The disciplinary process shall, to the extent possible, discover the truth
regarding charges against the inmate. For this purpose, the hearing officer shall be
authorized to call and to interrogate any witness, and each inmate, staff member,
volunteer, or contract employee called as a witness by the hearing officer shall be
compelled to appear. The hearing officer may bring out the facts by direct or cross-
examination but shall not act as prosecutor on behalf of the facility or charging officer
against the accused inmate, or on behalf of the inmate. Testimony and evidence shall not
be received by the hearing officer or introduced outside the presence of the accused
inmate, except that the accused inmate shall not be present when the hearing officer
reviews any facility security videotape evidence." (Emphasis added).

14

The complete dearth of regulations addressing documentary evidence, and the
absolute prohibition on inmate review of videotape evidence, cannot be squared with our
caselaw generally recognizing that an inmate's limited due process rights include the right
to present documentary evidence. Moreover, LCF's effective denial of Swafford's request
to see the video, absent any explanations of a reason for the denial, would not pass
constitutional scrutiny of the Tenth Circuit or other federal circuits enforcing a Brady
right to receive all exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963).

When the correctional institution possesses videotape of a purported disciplinary
violation by an inmate, that videotape is not only relevant to the inmate's guilt or
innocence, it may be the best evidence thereof. Consistent with the general rule that due
process requires that the inmate have the ability to present documentary evidence in his
or her defense, I would conclude that the hearing officer in such a proceeding may not
arbitrarily deny production and consideration of any such videotape. Such documentary
or electronic evidence should be made available to the inmate and admitted in the
proceeding under the same standards that are reflected in the current regulations
applicable to witnesses. That is to say, video evidence that purportedly captures the
incident giving rise to the disciplinary violation should be made available on the request
of the inmate and should be denied only on bases similar to those applicable to witnesses.
Moreover, any such denial must be accompanied by a written explanation of the reason
for denial. And, finally, the current regulation disallowing the viewing of the video
evidence by the inmate is contrary to due process standards and must be revised in a
manner not inconsistent with this opinion.

I am also compelled to note that my views are not dependent upon whether the
hearing officer actually reviewed and considered the video. Even if he did, the refusal to
produce it to Swafford—absent a reasonable basis for the refusal—denies fundamental
due process rights. The video here was even more critical because it was also the sole
15

basis for the allegations of the accusing officer; that is, neither of the witnesses personally
observed the alleged misconduct—they simply observed the same security video never
produced to Swafford. Denying that video to Swafford—even if it was considered by the
hearing officer—cannot be considered due process. That video here served as Swafford's
accuser. And Swafford's right to see it—at a minimum—was a key vindication was of his
Sixth Amendment right to confront his accuser. To say this did not violate due process is
to license the use of secret evidence against the accused. "Oh, don't worry, we will take a
look at it in determining your guilt, but you don't need to see it!" If this is the rule, the
entire disciplinary process is a sham.

In summary, I would hold that Swafford was denied adequate due process when
LCF failed to respond to his request for production or viewing of the videotape evidence,
when that evidence was not made available to him and he was not provided a written
explanation of good cause for the denial, and when he was convicted in a proceeding that
did not adequately enable his presentation of a defense. His conviction should be reversed
and the matter remanded for a disciplinary hearing. Additionally, I would urge that the
applicable regulations be revised consistent with this dissent, including new regulations
for production and presentations of documentary evidence—including video evidence—
that parallel the existing regulations for inmate witnesses.