Gray v. Cline

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NOT DESIGNATED FOR PUBLICATION

No. 118,942

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MICHAEL GRAY,
Appellant,

v.

SAM CLINE,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed August 17,
2018. Affirmed.

Matthew L. Tillma, of Law Office of Gregory C. Robinson, of Lansing, for appellant.

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

Before ARNOLD-BURGER, C.J., ATCHESON, J., and LORI BOLTON FLEMING, District Judge
assigned.

PER CURIAM: Michael Gray appeals the Leavenworth County District Court's
summary dismissal of his habeas corpus petition under K.S.A. 2017 Supp. 60-1501. Gray
was incarcerated at Lansing Correctional Facility where, as an inmate, he was charged
and ultimately found guilty of three disciplinary violations. As a result of these
violations, Gray was sanctioned with a 30-day loss of privileges for two of the violations
and received a written reprimand for the third. Gray's loss of privileges included the loss
of the use of his television for 60 days. Gray filed a habeas corpus petition contending
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that the Kansas Department of Corrections (KDOC) deprived him of property without
due process of law by depriving him of the use of his television for 60 days and that the
disciplinary hearing violated his right to due process in several ways. The district court
dismissed Gray's petition, finding Gray had not established the deprivation of a
constitutionally significant liberty or property interest. Finding no error in the district
court's ruling, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On October 13, 2017, Gray was working for Henke, Inc., an industry that
contracted with the Lansing Correctional Facility to provide employment for inmates,
when his supervisor ordered Gray to shut down his machine, allegedly because Gray's
use of the machine was unsafe. The supervisor later ordered Gray to return to the prison.
According to the supervisor, Gray created a scene, loudly protesting his treatment and
generally disrupting work. Gray denied that his conduct was disruptive. The supervisor
reported the incident to the company's human resource office, which notified the prison.
The unit team manager completed the disciplinary report. Gray was charged with
violating K.A.R. 44-12-318 (disruptive behavior), K.A.R. 44-12-305
(insubordination/disrespect), and K.A.R. 44-12-401(a) (inadequate work performance).

The KDOC held a disciplinary hearing on the charges on October 25, 2017. Gray
did not call any witnesses. The hearing officer found Gray guilty of the disciplinary
violations by a preponderance of the evidence, specifically finding the testimonies of the
work supervisor and the human resource office member to be more credible than Gray's
testimony. The hearing officer ordered disciplinary sanctions of 30-day privilege
restrictions for the violations of K.A.R. 44-12-318 and K.A.R. 44-12-305 and a written
reprimand for the violation of K.A.R. 44-12-401.

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Gray appealed to the prison warden and to the Secretary of Corrections, both of
whom affirmed the hearing officer's conclusions and imposition of sanctions.

On January 2, 2018, Gray filed a habeas corpus petition alleging a deprivation of a
property interest without due process. The district court summarily dismissed Gray's
petition on January 9, 2018, concluding that Gray had failed to demonstrate that the
sanctions imposed deprived Gray of a cognizable property interest.

Gray filed a timely notice of appeal.

On appeal, Gray argues that the district court erred in summarily dismissing his
habeas corpus petition.

A person who is detained, confined, or restrained of liberty within the state may
petition the court for a writ of habeas corpus. K.S.A. 2017 Supp. 60-1501(a). A habeas
corpus petition filed under K.S.A. 2017 Supp. 60-1501 must allege shocking or
intolerable conduct or mistreatment of a constitutional stature. See Bankes v. Simmons,
265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998); Corter v. Cline, 42
Kan. App. 2d 721, 722, 217 P.3d 991 (2009). If the face of the petition or the
incontrovertible facts of the case fail to allege such treatment, the petition may be
dismissed. K.S.A. 2017 Supp. 60-1503(a). When a district court denies the requested
habeas corpus relief without holding an evidentiary hearing, appellate review of the
denial is plenary. See Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009).

In this appeal, Gray asserts a violation of his right to procedural due process.
Whether procedural due process has been violated in a given situation is a question of
law subject to unlimited appellate review. See In re Care & Treatment of Sykes, 303 Kan.
820, 823, 367 P.3d 1244 (2016); In re Habeas Corpus Application of Pierpoint, 271 Kan.
620, Syl. ¶ 4, 24 P.3d 128 (2001); Swafford v. McKune, 46 Kan. App. 2d 325, 328, 263
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P.3d 791 (2011), rev. denied 294 Kan. 948 (2012). In order to establish a claim for a
violation of due process in a habeas corpus proceeding, an inmate must establish a
deprivation of a recognized liberty or property interest. Hogue v. Bruce, 279 Kan. 848,
850-51, 113 P.3d 234 (2005); see Murphy v. Nelson, 260 Kan. 589, 597-98, 921 P.2d
1225 (1996). The district court's dismissal of Gray's petition for failure to establish the
deprivation of a recognized liberty or property interest in the disciplinary sanctions
imposed constitutes the parties' main point of contention.

The record contains very little information to aid us in our review. Gray received
disciplinary sanctions of 30 days of privilege restrictions and a written reprimand. Gray
does not argue that the loss of his employment with Henke, Inc. constituted the
deprivation of a property interest. Nor does Gray contend that the loss of the ability to
earn good time credits constitutes the loss of a liberty or property interest. Instead, he
contends that the sanctions deprived him of his television for 120 days. He fails to
provide any evidence to support this factual assertion. Presumably, even if the
disciplinary sanctions were served consecutively, the privilege restrictions for these
disciplinary violations would extend only 60 days. But, assuming for the sake of
argument that the disciplinary sanctions deprived Gray of the use of his television for 120
days, the restriction does not implicate due process.

Gray cites Connecticut v. Doehr, 501 U.S. 1, 12, 111 S. Ct. 2105, 115 L. Ed. 2d 1
(1991), for the proposition that even a temporary or partial impairment to a property
interest implicates due process. Doehr does not support Gray's position. Doehr involved a
lien impairing an owner's right to dispose of real property, whereas the property
restriction at issue here occurred in the context of a prison sanction. Property interests are
necessarily limited in the context of prison. See Bell v. Wolfish, 441 U.S. 520, 553, 99 S.
Ct. 1861, 60 L. Ed. 2d 447 (1979); Bryant v. Barbara, 11 Kan. App. 2d 165, 167, 717
P.2d 522 ("Because petitioner is a prison inmate his property interests may be specially
defined as a consequence of his incarceration."), rev. denied 239 Kan. 693 (1986).
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As noted by Gray, K.A.R. 44-12-201 permits inmates to possess personal property
in prison. Once the prison has authorized an inmate to possess personal property, the
prison cannot deprive the inmate of that property without due process. See Bryant, 11
Kan. App. 2d at 167-68. Nevertheless, the temporary loss of privileges—including the
possession or use of electronic equipment—does not implicate due process because the
temporary loss of possession of personal property does not constitute an atypical and
significant hardship over and above the inmate's underlying sentence. "When an inmate is
afforded the opportunity to possess personal property, he or she enjoys a protected
interest in the ownership of that property that cannot be infringed without due process.
However, the inmate has no protected right to possession of the property while in prison."
(Emphasis added.) Stansbury v. Hannigan, 265 Kan. 404, Syl. ¶ 5, 960 P.2d 227, cert.
denied 525 U.S. 1060 (1998); see also Requena v. Roberts, 893 F.3d 1195, 1218 (10th
Cir. 2018) ("'[R]estrictions on an inmate's telephone use, property possession, visitation
and recreation privileges are not different in such degree and duration as compared with
the ordinary incidents of prison life to constitute protected liberty interests under the Due
Process Clause.'") (quoting Marshall v. Morton, 421 Fed. Appx. 832, 838 [10th Cir.
2011] [unpublished opinion]); Ramirez v. State, 23 Kan. App. 2d 445, 447, 931 P.2d
1265 ("We hold, as a matter of law, that 30 days' loss of privileges does not constitute an
atypical and significant hardship for purposes of a due process analysis."), rev. denied
262 Kan. 962 (1997); Mitchell-Pennngton v. Cline, No. 118,701, 2018 WL 2749967, at
*2 (Kan. App. 2018) (unpublished opinion) ("[A] restriction on privileges does not
implicate a protected liberty interest as it does not represent a significant and atypical
hardship in relation to the ordinary incidents of prison life for purposes of the due process
analysis."). Accordingly, Gray's temporary loss of the use of his television does not
constitute a significant property interest triggering procedural due process protection.

Gray has not argued any other liberty or property deprivation arising from the
disciplinary sanctions. Because we find Gray's right to use his television does not rise to
the level of a constitutionally protected liberty or property interest, we need not consider
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whether the disciplinary hearing itself was conducted inappropriately. The district court
was correct in summarily dismissing Gray's petition.

Affirmed.