Clark v. Roberts

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NOT DESIGNATED FOR PUBLICATION

No. 114,375

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GAYLEN CLARK,
Appellant,

v.

RAY ROBERTS, SECRETARY OF CORRECTIONS,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY judge. Opinion filed April 8,
2016. Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

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

Before SCHROEDER, P.J., HILL and GARDNER, JJ.

Per Curiam: Gaylen Clark, an inmate at the Lansing Correctional Facility, filed a
K.S.A. 2015 Supp. 60-1501 petition after being convicted of disciplinary violations. The
district court denied Clark's petition and dismissed the case. Finding no reversible error,
we affirm.
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Procedural Background

In January 2014, Clark was charged with battery, possessing a telephone, and
disobeying an order. The charges were the result of an altercation between Clark and a
corrections officer. According to the officer, when he entered the unit he saw Clark rush
toward the bathroom in apparent attempt to flush something down the toilet. The officer
ordered Clark to step away from the toilet, but Clark did not comply. As the officer tried
to reach the toilet, Clark pushed back against him, causing him to hit his head on a shelf.
Officers recovered a cellphone and a charger from the toilet.

After a disciplinary hearing in which the corrections officer and Clark testified,
Clark was found guilty on all three charges. He was sentenced to a total of 60 days of
disciplinary segregation, 180 days of privileges restriction, and $50 in fines. Clark then
filed a K.S.A. 2015 Supp. 60-1501 petition, claiming that his due process rights had been
violated. Arguing that he had failed to exhaust administrative remedies, the prison filed a
motion to dismiss Clark's petition. Both Clark and his appointed counsel responded to the
prison's motion. After a hearing, the district court took the motion under advisement.

Before the district court ruled on the prison's motion to dismiss, the prison
remanded Clark's case for a new disciplinary hearing in light of the claims Clark raised in
his petition. The new hearing officer dismissed the charge of possession of a telephone
because of a problem with the chain of custody and convicted Clark of the two remaining
charges. The prison then filed an amended motion to dismiss in district court and
informed the district court of the rehearing.

At his K.S.A. 2015 Supp. 60-1501 petition's evidentiary hearing, Clark argued that
under K.A.R. 44-13-302(b) the rehearing constituted double jeopardy. Clark also argued
that the battery charge was not supported by sufficient evidence. He further claimed that
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the prison intentionally violated his due process rights. After initially taking the motion
under advisement, the district court issued an order denying Clark's petition and
dismissing the case. Clark now appeals, claiming he did not receive an impartial hearing
and that insufficient evidence supports his battery conviction.

Standard of Review

We review a K.S.A. 60-1501 petition to determine whether substantial competent
evidence supports the district court's factual findings and whether those findings
sufficiently support its conclusions of law. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994
(2004). Substantial evidence is "legal and relevant evidence as a reasonable person might
accept as being sufficient to support a conclusion." 278 Kan. at 320. We review a district
court's conclusions of law de novo. 278 Kan. at 320. Our review of whether a petitioner's
due process rights have been violated is also unlimited. Hogue v. Bruce, 279 Kan. 848,
850, 113 P.3d 234 (2005).

We also note that although confinement to disciplinary segregation does not
implicate due process rights, being ordered to pay a fine does. See Anderson v. McKune,
23 Kan. App. 2d 803, 807, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S.
958 (1997). Thus, Clark has a protected property interest. We must now consider whether
Clark's due process rights were violated.

"Some Evidence" Standard

In a K.S.A. 60-1501 action, the petitioner bears the burden of proving that a
constitutional right was violated. Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505
(1999). The United States Supreme Court articulated the standard for determining
whether an inmate has met that burden of proof in Superintendent v. Hill, 472 U.S. 445,
105 S. Ct. 2768, 86 L. Ed. 2d. 356 (1985). We adopted that standard in Shepherd v.
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Davies, 14 Kan. App. 2d 333, 338, 789 P.2d 1190 (1990). Under this standard, "'[t]he
requirements of due process are satisfied if some evidence supports the decision by the
prison disciplinary board.'" Anderson, 23 Kan. App. 2d at 807 (quoting Hill, 472 U.S. at
455). The central consideration "'is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board.'" 23 Kan. App. 2d at 808
(quoting Hill, 472 U.S. at 455-56).

Impartial Hearing

Clark first argues that his constitutional rights were violated because he did not
receive an impartial hearing. He claims that before the first disciplinary hearing he tried
to retrieve some of his property and was told he could not do so due to his recent
disciplinary conviction. Clark believes that because the hearing had not yet been held and
because he had not had a disciplinary violation in over a year, the hearing officer
prejudged his case and relayed that information to other prison officials who erroneously
alluded to his "recent disciplinary conviction." According to Clark, a hearing cannot be
more impartial than when a hearing officer prejudges the case.

The record does not, however, contain any evidence that the hearing officer
prejudged Clark's case. In fact, the record indicates that the prison officials who told
Clark that he could not retrieve his property both later admitted that they had made a
mistake and had advised Clark of the correction. Nothing in the record tends to show that
the hearing officer was the source of that misinformation.

Further, this issue is moot because Clark was granted a rehearing with a different
hearing officer. And because Clark has not alleged that the rehearing was impartial, any
violation of due process based on impartiality has already been cured by a second hearing
with a different hearing officer. The district court therefore correctly denied this claim.

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Sufficiency of the Evidence

Clark next argues that his constitutional rights were violated because his battery
conviction was not supported by sufficient evidence. He alleges that the corrections
officer's testimony contradicted the disciplinary report. Specifically, in the report the
officer alleged that Clark pushed back against him, causing him to hit his head on a shelf.
But at the hearing, the officer testified that the shelf was above the toilet. Clark believes
that it would have been impossible for the officer to have hit his head on a shelf above the
toilet while being pushed away from the toilet.

Even assuming for purposes of argument the implausibility of that event, we find
the record contains sufficient evidence to support Clark's conviction. Battery is defined as
"the unlawful or unauthorized, intentional touching or application of force to the person
of another, when done in a rude, insolent, or angry manner." K.A.R. 44-12-324. The
corrections officer testified that Clark pushed him as he tried to approach the toilet,
causing him to hit his head on a shelf. Clark also admitted that while the officer was
behind him, he raised up. The exact location of the shelf, and how or whether the officer
was able to hit his head on it, does not matter because the record contains some evidence
showing that Clark had unauthorized, intentional, and rude contact with the officer. Thus,
the district court properly determined that Clark's battery conviction was supported by
sufficient evidence.

Clark briefly mentions that his possession of a telephone conviction was also not
supported by sufficient evidence. But, as mentioned, that charge was dismissed at the
rehearing. Further, because he does not mention his disobeying an order conviction in his
brief, Clark has waived and abandoned any issue regarding that charge. See Superior
Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) (stating that an
issues not briefed is considered waived and abandoned).

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Affirmed.