Baptist v. Cline

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NOT DESIGNATED FOR PUBLICATION

No. 117,049

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

PHILLIP BAPTIST,
Appellant,

v.

SAM CLINE,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed October 6,
2017. Affirmed.

John J. Bryant, of Bryant Law Office, of Kansas City, for appellant.

Sherri Price, special assistant attorney general, of Lansing Correctional Facility, for appellee.

Before ATCHESON, P.J., BUSER, J., and BURGESS, S.J.

PER CURIAM: Phillip Baptist, an inmate at Lansing Correctional Facility, was
terminated from his employment and given a verbal reprimand for leaving his workplace
in the kitchen without informing a supervisor. After exhausting his administrative
remedies, Baptist filed a petition for a writ of habeas corpus, pursuant to K.S.A. 2016
Supp. 60-1501, with the Leavenworth District Court. The district court summarily
dismissed Baptist's petition because it did not implicate any deprivation of a liberty
interest for which Baptist could obtain relief.

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We affirm the district court's summary dismissal, finding that Baptist's
employment at the prison and receipt of a verbal reprimand do not implicate protected
liberty interests or constitute conduct that is shocking to the conscience or fundamentally
unfair.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2016, Baptist was employed in the prison's kitchen. One morning he left
the kitchen without informing his supervisor. He was given a disciplinary report for the
incident, and Aramark, the company operating the kitchen, terminated Baptist's
employment. A hearing on the disciplinary report was conducted, and the hearing officer
found that it was more likely true than not that Baptist violated K.A.R. 44-12-401(b)—
work performance. As a consequence, Baptist was verbally reprimanded for the violation.
He brought an administrative appeal and the discipline was affirmed.

On July 18, 2016, Baptist filed a petition for writ of habeas corpus in the
Leavenworth District Court. In the petition, Baptist contended he was wrongfully
terminated from his employment because his conduct was not in violation of any rule or
regulation. The district court summarily dismissed Baptist's petition finding that the
inmate had not asserted a deprivation of a constitutionally protected liberty interest that
would warrant relief under K.S.A. 2016 Supp. 60-1501.

Baptist moved for reconsideration, arguing that his petition also alleged conduct
that was fundamentally unfair. The district court denied Baptist's motion because he had
not presented any new or additional authority or arguments to support his contentions.
Baptist appeals.



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ANALYSIS

On appeal, Baptist contends his termination from employment and resulting
disciplinary violation violates principles of fundamental fairness and due process because
he was punished for violating a nonexistent rule of employment—not being allowed to
leave work without approval of a supervisor.

Summary dismissal of a petition under K.S.A. 2016 Supp. 60-1501 is permissible
when, from the face of the petition, it can be established that the petitioner is not entitled
to relief, or if the undisputed facts show as a matter of law there is no cause to grant a
writ. Johnson v. State, 289 Kan. 642, 648-49, 215 P.3d 575 (2009). To determine if the
petitioner has stated a sufficient claim, the district court must accept as true the
allegations in the petition and review the allegations, along with 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 summary dismissal, our court exercises
unlimited review utilizing the same standard as used in the district court. Johnson, 289
Kan. at 648-49.

In order for a petitioner to establish a due process violation, the inmate must make
a threshold showing of an improper deprivation of a protected interest without due
process of law. Johnson, 289 Kan. at 649. Baptist has not met this threshold. The only
potential liberty interests that Baptist has asserted in his petition are his right to prison
employment and the right to be free of a verbal reprimand.

Employment while incarcerated is not a protected liberty interest for the purpose
of due process violations. Stansbury v. Hannigan, 265 Kan. 404, 421, 960 P.2d 227
(1998). Moreover, the Supreme Court has found that while states may create liberty
interests, these interests are limited to freedom from restraints that impose atypical and
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significant hardships on the inmate in relation to the ordinary incidents of prison life. See
Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995); Murphy
v. Nelson, 260 Kan. 589, 600-01, 921 P.2d 1225 (1996). Baptist's termination from prison
employment and receipt of a verbal reprimand do not impose an atypical and significant
hardship upon him. From our review of the petition and record, Baptist has failed to make
the required threshold showing that he was deprived of a protected liberty interest.

Citing Levier v. State, 209 Kan. 442, 451, 497 P.2d 265 (1972), Baptist also
contends his petition presents a situation that is "of such character or consequence as to
shock the conscience or be intolerable to fundamental fairness." The basis for this
allegation is that he was punished based upon a nonexistent rule or regulation. But
K.A.R. 44-12-401(b) states: "Each inmate shall perform work assigned in the manner
prescribed and according to the directives of the inmate's supervisor or other authorized
official. Intentional failure to report to or depart from work at the prescribed time and
without unnecessary delay en route shall be prohibited." (Emphasis added.) This
regulation prohibits the conduct for which Baptist claims there is no rule or regulation.

The conduct Baptist complains of is not shocking to the conscience or
fundamentally unfair. The case Baptist cites in support of his contention, Levier, dealt
with two inmates. The first inmate claimed, among other things, that while he was held in
administrative segregation he was denied medical treatment, proper diet, and exercise
which resulted in adverse health consequences. The second prisoner alleged long-term
confinement in segregation without adequate medical treatment, being sprayed with a
high-pressure water hose by prison officials, and being forced to sleep without adequate
clothing on a flooded concrete floor in an air-conditioned room. Our Supreme Court
found these allegations were sufficient to raise concerns of fundamentally unfair
treatment which warranted evidentiary hearings on the prisoners' petitions. 209 Kan. at
451. By comparison, Baptist's petition does not raise concerns of shocking conduct or
fundamentally unfair treatment that were apparent in Levier.
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In summary, Baptist's petition and record do not present a claim meriting relief
under K.S.A. 2016 Supp. 60-1501. Because Baptist was only released from his
employment and given a verbal reprimand, he was not denied any protected liberty
interest. Moreover, under the circumstances, these consequences are not shocking to the
conscience or fundamentally unfair. The district court did not err in summarily denying
Baptist's K.S.A. 2016 Supp. 60-1501 petition.

Affirmed.