Conklin v. Heimgartner

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NOT DESIGNATED FOR PUBLICATION

No. 114,585

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ANDREW CONKLIN,
Appellant,

v.

JAMES HEIMGARTNER,
Appellee.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed August 5, 2016.
Affirmed.

Nancy Ogle, of Ogle Law Office, of Wichita, for appellant.

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

Before MALONE, C.J., GREEN and GARDNER, JJ.

Per Curiam: This case concerns a prison disciplinary action against Andrew
Conklin for a violation of a prison rule that prohibits the misuse of medication. At his
disciplinary hearing, Conklin presented evidence that his cellmate, who was also charged,
admitted sole responsibility for the violation. But the officer who witnessed the incident
identified Conklin as the person who threw his cellmate's medication under their cell
door. The hearing officer found Conklin guilty and assigned a fine and 30 days of
disciplinary segregation. Conklin appealed to the Secretary of Corrections (Secretary).
After the Secretary upheld the hearing officer's decision, Conklin petitioned the trial court
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for habeas relief under K.S.A. 2015 Supp. 60-1501 (K.S.A. 60-1501 petition). Finding no
reversible error, we affirm.

On February 22, 2015, Officer A. Randolph, a prison guard at El Dorado
Correctional Facility (EDCF), charged cellmates Andrew Conklin and Mark Baker with
violating K.A.R. 44-12-312(b) (2009). That regulation prohibits, in pertinent part,
prisoners' misuse of authorized or prescribed medication. As support for the charges,
Randolph recited the following underlying facts in both inmates' disciplinary reports:

"On 2/21/2015 at approx. 1355 hrs. I, CSI A. Randolph was informed by COI Markham
in L control that something had just been thrown out from under the door of cell 206 and
another offender was [trying] to go pick it up. At that time, I went up to cell 206 and saw
a brown paper towel and a white pill laying on the run. I picked up the paper towel and
found 3 more white pills inside it. On 2/22/2015, offender Baker told me the pills were
his and that he was trying to help someone out because they were in pain."

The report listed Markham as the sole staff witness.

During Conklin's 2-day disciplinary hearing, the hearing officer (Johnson) heard
conflicting evidence about who threw the pills. On the first day of testimony, Conklin,
Baker, and Randolph each reiterated Baker's acceptance of full responsibility. The next
day, however, Markham testified that he saw Conklin bend down and throw the paper
towel under the cell door and then stand back up.

Johnson found Conklin guilty and sanctioned him with 30 days of disciplinary
segregation and a $20 fine. The warden approved Johnson's decision.

In Conklin's ensuing challenges to Johnson's decision, he alleged that Johnson
exhibited bias and violated his due process rights during his disciplinary hearing in
various ways. For example, Conklin suggested in a Form 9 inquiry that Johnson was
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required under K.A.R. 44-13-403(e) (2009) (KS ADC 44-13-403) to dismiss the charge
against Conklin given Baker's confession. Johnson responded that dismissal was not
warranted. In Conklin's appeal to the Secretary, he accused Johnson of bias for not
dismissing the charge in light of Baker's confession, for refusing Conklin's request to see
the evidence against him, and for not questioning Markham's credibility given the
surrounding circumstances. The Secretary affirmed Conklin's conviction, finding Johnson
substantially complied with prison rules and some evidence supported his decision. In his
K.S.A. 60-1501 petition that is the subject of this appeal, Conklin again alleged Johnson
did not follow the rules and his conviction must be set aside because the preponderance
of the evidence showed Baker threw the pills under the cell door, not Conklin.

The trial court summarily dismissed Conklin's K.S.A. 60-1501 petition. In support,
the trial court checked a box on the form order that stated: "Disciplinary segregation, in
itself does not implicate constitutional rights. The Court sees no violation of protected
liberty interests. There's nothing atypical about petitioner's confinement." Next to that,
the court also handwrote: "Court will not retry the facts. Some evidence supports
conviction, in fact more than that. No cognizable claim." In his motion to reconsider the
dismissal, Conklin alleged for the first time that Johnson had failed to provide written
findings of the reason for his decision. Specifically, Conklin alleged that Johnson needed
to explain why he believed Markham instead of what Conklin considered to be
"overwhelming" evidence of his innocence. The trial court summarily denied that motion,
too. This time the trial court wrote: "written [disciplinary report] constitutes 'some
evidence.' Court will not retry facts." On appeal, Conklin contends that the trial court
erred in summarily dismissing his K.S.A. 60-1501 petition in two ways.

Before addressing Conklin's specific arguments, a brief review of the general law
governing K.S.A. 60-1501 petitions filed by inmates is warranted. To avoid summary
dismissal of his K.S.A. 60-1501 petition, Conklin is required to allege "shocking and
intolerable conduct or continuing mistreatment of a constitutional stature." Johnson v.
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State, 289 Kan. 642, 648, 215 P.3d 575 (2009). This court will affirm the summary
dismissal of an inmate's petition only if, "on the face of the petition, it can be established
that [the inmate] 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." 289 Kan. at 648-49. See K.S.A. 2015 Supp. 60-
1503(a) (upon filing of K.S.A. 60-1501 petition, trial court must "promptly" review and
"dissolve" petition where "it plainly appears from the face of the petition and any exhibits
attached thereto that the plaintiff is not entitled to relief in the district court").

In determining whether Conklin satisfied this pleading burden, this court considers
whether the facts alleged in Conklin's petition, when accepted as true, and all their
inferences state a claim not only on the theories set forth by Conklin, but also on any
possible theory. See Washington v. Roberts, 37 Kan. App. 2d 237, 240, 152 P.3d 660
(2007) (citing Hill v. Simmons, 33 Kan. App. 2d 318, 320, 101 P.3d 128 [2004]). An
appellate court exercises unlimited review of a summary dismissal. Johnson, 289 Kan. at
649.

Did Conklin State a Valid Due Process Claim Based on Various Failures to Follow Rules
and Regulations That Govern Prison Disciplinary Actions?

Conklin first contends that the trial court erred in summarily dismissing his K.S.A.
60-1501 petition because he stated a valid due process claim based on various failures to
comply with rules and regulations that govern prison disciplinary actions. Whether due
process has been afforded presents a question of law subject to unlimited review by this
court. Washington, 37 Kan. App. 2d at 240.

Deciding whether a prisoner has stated a claim for a violation of his or her
procedural due process rights involves two steps. First, this court must determine whether
the State deprived the prisoner of life, liberty, or property. If so, then this court
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determines "the extent and nature of the process which is due." Hogue v. Bruce, 279 Kan.
848, 850-51, 113 P.3d 234 (2005).

The parties agree that the first step was satisfied here because of the $20 fine
imposed. See Washington, 37 Kan. App. 2d at 240 ("[T]he extraction of a fine implicates
the Due Process Clause of the Fourteenth Amendment to the United States Constitution
even when only a small amount has been taken from an inmate's account."). To the extent
the trial court suggested otherwise by checking the box on its initial form order, it erred.

Moving on to determine the extent and nature of the process due to Conklin in the
disciplinary proceedings, it should be noted that "[d]ue process '"is not a technical
conception with a fixed content unrelated to time, place, and circumstances."'" Hogue,
279 Kan. at 851. Courts have recognized that a prisoner's limited due process rights
during a disciplinary proceeding include:

"'an impartial hearing, a written notice of the charges to enable inmates to prepare a
defense, a written statement of the findings by the factfinders as to the evidence and the
reasons for the decision, and the opportunity to call witnesses and present documentary
evidence.' [In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d
128 (2001)]." Hogue, 279 Kan. at 851.

See also K.A.R. 44-13-101(c) (detailing these due process rights in summarizing prison
disciplinary procedures); accord Wolff v. McDonnell, 418 U.S. 539, 553-56, 94 S. Ct.
2963, 41 L. Ed. 2d 935 (1974) (recognizing need for "mutual accommodation between
institutional needs and objectives" and prisoner's rights in holding "the full panoply of
rights due a defendant in [criminal] proceedings does not apply"). Conklin's argument
here is two-fold.

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(1) Johnson's failure to provide reasons for his decision

Conklin first contends that Johnson's failure to provide reasons for his decision
violated his due process rights. This argument ties into the United States Supreme Court's
explanation for the necessity of written records of prison disciplinary actions:

"[A]ctions taken at [disciplinary] proceedings may involve review by other bodies. . . .
Written records of proceedings will thus protect the inmate against collateral
consequences based on a misunderstanding of the nature of the original proceeding.
Further, as to the disciplinary action itself, the provision for a written record helps to
insure that administrators, faced with possible scrutiny by state officials and the public,
and perhaps even the courts, where fundamental constitutional rights may have been
abridged, will act fairly. Without written records, the inmate will be at a severe
disadvantage in propounding his own cause to or defending himself from others." Wolfe,
418 U.S. at 565.

Conklin summarily contends that Johnson's failure to provide a written statement of the
reasons for his finding of guilt placed him at "a severe disadvantage" in propounding his
cause or defending himself, "[e]specially where the evidence against him is virtually non-
existent." The warden did not respond to this particular due process claim.

Granted, Conklin correctly points out that Johnson did not specifically state the
reasons for his decision. Rather, on the line meant for a hearing officer's designation of
the reason for disciplinary sanctions, Johnson wrote only "sent guidelines," presumably
referring to the permissible sanctions for violating K.A.R. 44-12-312. See K.A.R. 44-12-
312(e) (violation of regulation is class I offense); K.A.R. 44-12-1301(b) (detailing
permissible penalties for class I offense). Nevertheless, Conklin clearly understood, and
this court can readily deduce from Johnson's written findings about the conflicting
testimony: Johnson believed Markham's testimony that Conklin, not Baker threw the pills
under the cell door. Conklin, however, alleges in his K.S.A. 60-1501 petition that
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"[m]erely stating 'I saw you throw a brown paper towel under your door is not "proof" of
"specific facts."'" Conklin also highlights contradictions between Markham's testimony
and the other evidence. As a result, we conclude that Conklin had notice of the reasons
for Johnson's decision.

In sum, the uncontrovertible facts in the record show that no cause exists for
granting a writ as a matter of law based on Conklin's allegation that he was deprived of
due process based on Johnson's failure to state the reason for his decision. Thus, he is not
entitled to relief on that claim.

(2) Johnson's failure to follow prison policies and procedures

Turning now to Conklin's second argument, we note that he contends that Johnson
failed to follow prison policies and procedures, which deprived him of his right to due
process.

As this court has explained:

"[T]he fact that the hearing officer failed to comply with [a prison] regulation does not in
itself establish a due process violation. Quoting Anderson [v. McKune], 23 Kan. App. 2d
[803], 811[, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997)],
our Supreme Court in Hogue stated the following:

"'"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."' 279 Kan. at 855-56."
Washington, 37 Kan. App. 2d at 242.

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According to Conklin, he was deprived of due process based on three violations of prison
rules and regulations.

First, Conklin contends that Johnson failed to follow an internal policy that
regulates the discovery of contraband at EDCF. More specifically, Conklin complains
that Johnson failed to follow a prison policy that provides:

"Items found in common areas which are routinely accessible to multiple offenders shall
not be the basis for disciplinary action without an offender's admission that is judged
credible by a hearing officer or proof of specific facts tying the contraband to an
individual offender or group of offenders. This would include items found outside of an
identified offender's area of personal control in a dormitory cubicle or multi-occupant
setting." Internal Management Policies and Procedures (IMPP) 09-122.

Conklin contends that the discovery of the pills in a common area outside of his cell
would "[n]ormally" require specific facts tying the contraband to Conklin to convict him.
Conklin suggests, however, that Baker's confession and proof that the medication was his
somehow precludes prison officials from disciplining Conklin for the incident even if
there were also facts tying Conklin to the contraband. We reject Conklin's argument for at
least two reasons.

First and foremost, the facts here do not implicate IMPP 09-122. Although the
pills ultimately ended up in a common area, Conklin was convicted for physically
throwing the pills under his cell door. The pills were obviously in Conklin's "area of
personal control" at the time. That they ultimately ended up in a common area does not
matter.

Second, even if IMPP 09-122 was implicated because Baker was also in the cell at
the time, Conklin's argument misreads its requirements or takes them out of context. As
long as there are specific facts tying the contraband to an individual offender or group of
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offenders—which there was here in Markham's testimony that he saw Conklin throw the
pills under the door—then the items found in the common area can serve as the basis for
a disciplinary action. That the evidence might also point to another inmate presents only a
fact question to be resolved by the hearing officer; it does not preclude the charge as a
matter of law. As the warden points out in responding to Conklin's separate challenge to
the sufficiency of the evidence, the separate charges for "misusing" medication stemmed
from: (1) Baker's willingness to pass his prescribed medication to another prisoner; and
(2) Conklin's physical passing of that medication to the other, unnamed prisoner—both of
which are actions that constitute the "misuse" of medication in violation of K.A.R. 44-12-
312(b)(1)(B). Thus, Conklin did not state a proper due process claim based on Johnson's
failure to comply with IMPP 09-122.

Although Conklin suggests that Johnson was required but failed to dismiss the
case against Conklin because Baker confessed, Conklin has not developed this argument
in his brief. As a result, we decline to reach the merits of this argument. See Manco v.
State, 51 Kan. App. 2d 733, 740, 354 P.3d 551 (2015), rev. denied ___ Kan. ___ (March
31, 2016) (quoting McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15,
61 P.3d 68 [2002] in recognizing "'[s]imply pressing a point without pertinent authority,
or without showing why it is sound despite a lack of supporting authority, is akin to
failing to brief an issue'").

Finally, Conklin contends that Johnson refused to show Conklin the evidence
supporting his conviction. Conklin has not developed this argument in his brief on
appeal, either. Nevertheless, in his K.S.A. 60-1501 petition, Conklin alleges that K.A.R.
44-13-403(l)(2)(A) obligated Johnson to either show him the evidence directly or at least
show him pictures. That regulation governs how a disciplinary hearing shall proceed,
beginning with the prosecution's presentation of evidence, which "the defense shall be
permitted to cross-examine" except for reasons not applicable here. K.A.R. 44-13-
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403(l)(2)(A). Conklin, however, states that Johnson denied his request to see the evidence
against him on February 25, 2015—the second day of his disciplinary hearing.

This is the only due process violation alleged by Conklin in his first issue to which
the warden responds. The warden interprets this argument to refer to new evidence that
Conklin submitted for the first time in the trial court, after he filed his K.S.A. 60-1501
petition. That evidence consists of an affidavit from another inmate, Cory Calkins.
According to the affidavit, Calkins was in a cell near Conklin's when Johnson conducted
the disciplinary hearing outside of Conklin's cell. Calkins overheard Johnson ask Conklin
what his defense was, to which Conklin replied that the case should be dismissed because
Baker confessed. Calkins further asserted in his affidavit that when Conklin asked to see
the evidence against him, Johnson responded no, telling Conklin, "'if you don't like it, file
it in you[r] appeal.'" The warden asserts that Conklin first raised this issue in his motion
to reconsider the trial court's summary denial of his K.S.A. 60-1501 petition and
summarily contends that Johnson's "alleged comment about [Conklin's] right to appeal
his findings do not rise to a constitutional violation."

We conclude on the undisputed facts in the record that this contention does not
state an actionable due process violation. By citing to K.A.R. 44-13-403(l)(2)(A),
Conklin seems to allege he was deprived of the right to see the evidence against him
before he had to come forward with evidence under K.A.R. 44-13-403(l)(2)(B). Yet,
Conklin alleges that this violation did not occur until the second day of the hearing,
which is inconsistent with that contention. Even accepting as true the allegation that
Johnson failed to require the prosecution to first present its evidence, as this court must,
nothing about that procedural error implicates a violation of fundamental fairness that
rises to an unconstitutional level.

We conclude that Conklin did not state a valid due process claim based on
procedural errors at his disciplinary hearing.
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Does Some Evidence Support Conklin's Disciplinary Conviction?

In Conklin's second issue on appeal, he contends that his disciplinary conviction
was not supported by the evidence.

This argument is also based on Conklin's due process rights, which are satisfied as
long as some evidence supports his conviction. Washington, 37 Kan. App. 2d at 246.
"Ascertaining whether this standard is satisfied does not require examination of the entire
record, independent assessment of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there exists any evidence in the record
to support the conclusion reached by the disciplinary board." 37 Kan. App. 2d at 246.
Notably, under this standard even "'meager'" evidence can support a prisoner's discipline
provided that "'the record is not so devoid of evidence that the findings . . . were without
support or otherwise arbitrary.'" Anderson, 23 Kan. App. 2d at 808.

Conklin's argument here focuses upon the trial court's reasoning for denying
Conklin's challenge to the sufficiency of the evidence, that is, that the disciplinary report
constitutes some evidence supporting Conklin's conviction. Conklin contends that this
cannot be because the disciplinary report implicated only Baker. The facts in the
disciplinary report as recited earlier in the factual background do not necessarily
implicate Conklin. Nevertheless, we must review the entire record to determine the
propriety of a summary dismissal of a challenge in a K.S.A. 60-1501 petition to the
sufficiency of the evidence. Markham's testimony that Conklin threw the pills constitutes
some evidence to support his conviction. As a result, summary dismissal was proper.

Affirmed.