Channel v. Heimgartner

1

NOT DESIGNATED FOR PUBLICATION

No. 115,070

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ANDRE CHANNEL,
Appellant,

v.

JAMES HEIMGARTNER,
Appellee.

MEMORANDUM OPINION


Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed July 15, 2016.
Affirmed.

Nancy Ogle, of Ogle law Office, L.L.C., of Wichita, for appellant.

Michael J. Smith, of Kansas Department of Corrections, for appellee.

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

Per Curiam: Andre Channel was found guilty after an inmate discipline hearing
of possessing a dangerous substance, specifically a liquid containing alcohol. The district
court dismissed his habeas petition challenging the disciplinary action. He alleges the
hearing officer failed to consider anything other than the disciplinary report and prison
officials failed to follow procedural regulations prior to and during the hearing, thereby
denying him due process. Some evidence supports the hearing officer's determination,
and Channel failed to do more than allege procedural violations, resulting in a failure to
adequately raise a constitutional claim. We affirm.

2

Channel is an inmate at the El Dorado Correctional Facility. On June 24, 2015, a
corrections officer submitted a disciplinary report indicating that he had found a red
liquid in a coffee container in Channel's cell, the liquid had a strong odor, and a test
indicated that it was .30% alcohol. A picture in the record shows a test strip and result
reference sheet. Channel received a copy of the report later that day, and at 5:35 the next
morning, a corrections officer served him with a summons for a hearing on June 26,
2015, at 7:45 a.m.

According to the hearing report, the hearing officer found that Channel did not
require staff assistance, Channel waived requiring the reporting officer to testify, and
Channel pled not guilty. Channel testified the liquid was something he had put aside for
Ramadan and it was made of apple juice, Hawaiian Punch, and sweetener, and he also
included a written statement with his testimony. In the written statement, he indicated he
had spoken with a nurse who provided him with a book that explained how his mixture
could have inadvertently produced alcohol. He also requested a retest of the liquid in the
statement. The hearing officer concluded, by a preponderance of the evidence, that it was
more likely than not that Channel possessed a container with alcohol. The hearing officer
recommended 30 days in disciplinary segregation, a $20 fine, and a reduction in good
time. The report indicated the evidence had been destroyed. The warden approved the
sanction.

Channel appealed the decision to the secretary of the department of corrections.
He raised four issues in his appeal: (1) he was not given the required 48 hours to file his
witness form; (2) his request for a continuance was denied, even though the hearing was
less than 48 hours after he received the blank witness form; (3) the hearing officer
refused his request to see the picture of the alcohol test, informing him that he did not
need to see the evidence against him; and (4) neither his written statement nor the
photographic evidence were attached to the disposition form he received, indicating that
the only evidence the hearing officer considered was the disciplinary report.

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The Secretary found substantial compliance with standards and procedures,
concluded that some evidence supported the hearing officer's decision, and approved the
decision.

Channel sought review in district court through a K.S.A. 2015 Supp. 60-1501
habeas petition. He argued that he had been deprived of liberty and property without due
process because the hearing officer could not have concluded that some evidence
supported the decision because it summarily made the decision based solely on the
disciplinary report. He also alleged the warden had participated in a conspiracy to
discriminate on a religious basis, thereby depriving him of equal protection. The district
court summarily dismissed the petition, noting that disciplinary segregation did not
implicate constitutional rights and Channel's admission to possession of the container and
the substance and the test demonstrating that the substance contained alcohol constituted
"some evidence of guilt." Channel appealed.

Channel argues that he challenged his disciplinary conviction under the Due
Process Clause of 14th Amendment to the United States Constitution in his petition,
specifically when he alleged in his appeal to the Secretary that he was not given the
required 48 hours to file his witness form, and the district court erred by failing to address
this claim. He contends the $20 fine and the loss of good time constituted the deprivation
of protected interests, and the prison officials failed to follow regulations prior to and
during the hearing. He states they violated regulations by hearing evidence outside his
presence when the hearing officer refused to show him the picture of the alcohol test and
refused to retest the liquid, which had been destroyed prior to the hearing.

Channel also argues that the hearing officer failed to provide him with the required
48 hours to submit his witness form, although, as at each stage in this process, he has not
indicated what witnesses he would have called or evidence he would have introduced if
given the additional time.

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Finally, he argues that due process cannot be satisfied merely by the support of
"some evidence," especially in light of the several procedural violations noted above that
tainted the entire proceeding. He grounds this argument in caselaw dealing with due
process protections afforded to defendants in probation violation proceedings.

The question of whether due process exists in a set of facts is a question of law.
Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996). Our review, then, is
unlimited. Anderson v. McKune, 23 Kan. App. 2d 803, 807 (1997).

An inmate's due process claim under K.S.A. 2015 Supp. 60-1501 must assert the
deprivation of a constitutional right or we are without jurisdiction to consider the claim,
and, in the absence of such a claim, the petition should be summarily dismissed. Ramirez
v. State, 23 Kan. App. 2d 445, Syl. ¶ 3, 931 P.2d 1265 (1997). The assessment 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. Washington v. Roberts, 37 Kan. App. 2d 237,
240, 152 P.3d 660 (2007). Due process is satisfied in such cases when some evidence
supports the disciplinary decision. Anderson, 23 Kan. App. 2d at 807-08 (citing
Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S. Ct. 2768, 86 L. Ed. 2d 356 [1985]).

"The mere fact that a hearing officer in a prison discipline case has not followed DOC
procedural regulations does not of itself violate fundamental fairness that rises to an
unconstitutional level. Without much more, a petition for habeas corpus alleging
procedural errors at a prison disciplinary hearing must fail. As a general rule, prison
officials are given flexibility in executing internal prison policies and procedures which are
designed to preserve internal order and discipline." Anderson, 23 Kan. App. 2d at 811.

First, the record does not support Channel's contention that the hearing officer
summarily rendered his decision based solely on the disciplinary report. The hearing
report clearly demonstrates that the officer considered Channel's testimony and evidence
of the alcohol test. Channel bases his claim on the lack of attachments to the disposition
form he received, but the hearing officer's failure to staple additional documents to the
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disposition form does not undermine the clear indications in the hearing report that the
officer considered more than just the disciplinary report. Channel admitted possessing the
can and the liquid inside, and the alcohol test demonstrated that the liquid was at least
.30% alcohol. These facts satisfy the "some evidence" standard and support the hearing
officer's decision. 23 Kan. App. 2d at 807-08.

Second, the due process protections afforded to inmate discipline procedures are
not as broad as Channel argues. Some evidence supported the hearing officer's decision,
as noted above, and Channel failed to elaborate on the procedural violations he alleged.
See 23 Kan. App. 2d at 807-08. Channel has never indicated what witnesses he would
have called if given additional time to submit his form, what evidence would result from
calling witnesses, or how he was actually harmed by the prison's decision to hold the
hearing less than 48 hours after it served him with the disciplinary report. As such, he has
not provided the "something more" that we require when a prisoner raises procedural
violations in a habeas petition challenging inmate discipline. See 23 Kan. App. 2d at 811.

Even construing all of Channel's factual allegations as true, he has still failed to
demonstrate that his complaint rises to the level of a constitutional violation. Thus,
although one could interpret the district court's summary dismissal as a finding that
Channel failed to identify a constitutionally protected interest, which would be an error
given the $20 fine, the district court correctly concluded that Channel failed to adequately
raise a constitutional claim. See Washington, 37 Kan. App. 2d at 240; Ramirez, 23 Kan.
App. 2d 445, Syl. ¶ 3. As such, summary dismissal was appropriate and we affirm.

Affirmed.