Ginn v. Hunt

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NOT DESIGNATED FOR PUBLICATION

No. 120,004

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KEVIN W. GINN JR.,
Appellant,

v.

D.H.O. HUNT,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed April 5,
2019. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

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

Before LEBEN, P.J., BUSER and STANDRIDGE, JJ.

PER CURIAM: Kevin W. Ginn Jr. appeals the district court's summary dismissal of
his K.S.A. 2017 Supp. 60-1501 habeas corpus petition. The district court dismissed the
petition because Ginn failed to assert any deprivation of a constitutionally protected
interest. On appeal, Ginn candidly concedes that he failed to plead any deprivation of a
recognized liberty interest under our current caselaw precedent. But Ginn contends our
analysis of procedural due process violations should change to provide that the severity
of the alleged disciplinary offense is considered instead of merely the sanction imposed
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for that violation. Applying current precedent—as we must—we decline Ginn's invitation
to adopt a new legal test and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Ginn is an inmate at the Lansing Correctional Facility (LCF). On September 2,
2017, he received a disciplinary report for allegedly disobeying orders in violation of
K.A.R. 44-12-304. Additionally, Ginn was cited for violating the work performance
requirements of K.A.R. 44-12-401(b). The disciplinary report was issued in response to
Ginn's refusal to turn over his MP3 player to a correctional officer and his failure to
sweep a floor.

A hearing on the disciplinary report was held at LCF on September 7, 2017. The
hearing officer found Ginn guilty of both violations. He was given a sanction of 30 days'
privilege restriction for disobeying orders. This sanction was suspended for 180 days.
The hearing officer also issued a verbal reprimand for Ginn's violation of work
performance requirements. Ginn appealed the hearing officer's decision to the warden and
the Secretary of Corrections. Both the warden and the Secretary approved the hearing
officer's decision.

On December 8, 2017, Ginn filed a K.S.A. 2017 Supp. 60-1501 habeas corpus
petition in the district court. In the petition, Ginn alleged the hearing officer violated his
due process rights by improperly denying his request to have four witnesses testify on his
behalf during the disciplinary hearing. Ginn argued that the witnesses would have
testified that he swept the floor in question and that the correctional officer used profanity
when ordering him to turn over his MP3 player. The district court summarily dismissed
the petition after finding that Ginn failed to allege any deprivation of a constitutionally
protected interest.

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Ginn appeals.

ANALYSIS

To state a claim for relief under K.S.A. 60-1501, a petition must allege "shocking
and intolerable conduct or continuing mistreatment of a constitutional stature." Johnson
v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). "[I]f, on the face of the petition, it can
be established that petitioner 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," then summary dismissal is proper. 289 Kan. at
648-49; see K.S.A. 2017 Supp. 60-1503(a).

We exercise unlimited review over a district court's summary dismissal. And our
court exercises unlimited review when determining whether an individual's right to due
process under the Fourteenth Amendment to the United States Constitution has been
violated. 289 Kan. at 649.

In this appeal, Ginn contends there were violations of his due process rights during
the disciplinary hearing. To determine whether an inmate states a due process claim, our
court applies a two-step analysis. First, we determine whether the State has deprived the
inmate of life, liberty, or property. If this first step is met, we determine the extent and
nature of the process to which the prisoner is entitled. Washington v. Roberts, 37 Kan.
App. 2d 237, 240, 152 P.3d 660 (2007) (citing Hogue v. Bruce, 279 Kan. 848, 850-51,
113 P.3d 234 [2005]).

In this case, the hearing officer imposed two sanctions: (1) a 30-day privilege
restriction, which was suspended for 180 days; and (2) a verbal reprimand. Additionally,
Ginn suggests that some of his good time credit was withheld as a collateral consequence
of his disciplinary violations. Of note, he does not argue that these sanctions implicated
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any property interest. As a result, we next consider whether the sanctions deprived Ginn
of a protected liberty interest.

Turning first to the 30-day privilege restriction, the record does not show that the
sanction was ever imposed. This is important because sanctions never imposed do not
implicate a protected liberty interest. Hardaway v. Larned Correctional Facility, 44 Kan.
App. 2d 504, 505, 238 P.3d 328 (2010). Still, even if the 30-day privilege restriction was
imposed, Ginn would not have been deprived of a protected liberty interest. Our court has
repeatedly found that a restriction on privileges implicates no protected liberty interest
because it does not represent a significant and atypical hardship in relation to the ordinary
incidents of prison life. Ramirez v. State, 23 Kan. App. 2d 445, 447, 931 P.2d 1265
(1997); Mitchell-Pennington v. Cline, No. 118,701, 2018 WL 2749967, at *2 (Kan. App.
2018) (unpublished opinion).

Similarly, Ginn's verbal reprimand does not constitute an atypical or significant
hardship necessary to trigger a protected liberty interest. Baptist v. Cline, No. 117,049,
2017 WL 4453102, at *2 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan.
986 (2018). Finally, the withholding of good time credits does not constitute a
deprivation of a constitutionally protected liberty interest. Ramirez, 23 Kan. App. 2d at
447. In summary, Ginn's disciplinary sanctions did not deprive him of a constitutionally
protected interest.

Ginn acknowledges that, under current caselaw precedent, the sanctions did not
deprive him of a constitutionally protected interest and, as a result, he has failed to state a
due process claim. But Ginn argues for a change in the method of analyzing whether an
inmate's due process rights have been violated. Ginn disagrees with the current legal
precedent which requires us to consider the sanction imposed for a violation in
determining whether the State deprived the inmate of life, liberty, or property. Instead,
Ginn proposes "that the process due should be keyed to the level of offense, as utilized,
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and according to, the readily available administrative regulations, and not merely the
sanction imposed." Upon our consideration, we must decline Ginn's invitation.

Our Supreme Court announced the two-step inquiry for procedural due process
habeas claims in Murphy v. Nelson, 260 Kan. 589, 597-98, 921 P.2d 1225 (1996), and has
applied it faithfully since that time. See Johnson, 289 Kan. at 649; Hogue, 279 Kan. at
850-51. That precedent provides that when considering the first step—whether the State
deprived the inmate of life, liberty, or property—the court should consider the actual
sanction or punishment imposed for the violation. See, e.g., Hogue, 279 Kan. at 851.

We are duty bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Ginn provides no indication that our
Supreme Court is departing from this well-established precedent, and we are not aware of
any such indication. Accordingly, we will adhere to our Supreme Court's precedent,
apply the two-step procedural due process analysis, and find that Ginn has failed to allege
a loss of a constitutionally protected interest. As a result, the district court did not err by
summarily dismissing his K.S.A. 2017 Supp. 60-1501 petition.

Affirmed.