Grissom v. Schnurr

1

NOT DESIGNATED FOR PUBLICATION

No. 121,169

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RICHARD GRISSOM,
Appellant,

v.

DAN SCHNURR, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed November
22, 2019. Affirmed.

Shannon S. Crane, of Hutchinson, for appellant.

Jon D. Graves, legal counsel, of Kansas Department of Corrections, for appellees.

Before BUSER, P.J., SCHROEDER and WARNER, JJ.

PER CURIAM: Richard Grissom appeals the district court's summary denial of his
K.S.A. 2018 Supp. 60-1501 habeas corpus petition. Grissom identifies two errors made
by the district court. First, he contends the district court erred by determining that he
failed to assert a deprivation of a constitutionally protected liberty interest. Second,
Grissom argues that the district court mistakenly concluded that his petition was moot.
Upon our review, we conclude that Grissom suffered no deprivation of a constitutionally
protected interest and, as a result, we affirm the district court's summary denial on that
basis.

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FACTUAL AND PROCEDURAL BACKGROUND

While an inmate at the El Dorado Correctional Facility, Grissom was involved in a
physical altercation with a correctional officer. After the altercation, Grissom was issued
a disciplinary report charging him with battery in violation of K.A.R. 44-12-324 and
disobeying an order in violation of K.A.R. 44-12-304. The disciplinary report alleged that
Grissom refused an officer's order to be placed in restraints and resisted the officer's
attempts to handcuff him. After Grissom became combative and the officer began using
force, Grissom struck the officer.

At a disciplinary hearing, Grissom was found guilty of battery and disobeying an
order. He was sentenced to 15 days in disciplinary segregation. The hearing officer
assessed no fine for either violation, nor did he impose any loss of good time credit.

After exhausting his administrative remedies, Grissom filed a petition for writ of
habeas corpus under K.S.A. 2018 Supp. 60-1501. In his petition, Grissom claimed the
State violated his due process rights by: (1) violating regulations governing disciplinary
hearing procedures and time limitations, (2) precluding him from calling witnesses at the
disciplinary hearing, and (3) failing to prove that he was guilty of battery and disobeying
an order. Grissom also argued that the hearing officer violated his due process rights by
failing to act in an impartial manner.

At the conclusion of a nonevidentiary hearing, the district court summarily denied
Grissom's petition, finding that he failed to allege any deprivation of a constitutionally
protected interest. Additionally, the district court determined the matter was moot
because Grissom had already served the time in disciplinary segregation.

Grissom appeals.

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ANALYSIS

On appeal, Grissom contends the district court erred by summarily denying his
K.S.A. 2018 Supp. 60-1501 petition for failing to state a claim upon which relief could be
granted.

To state a claim for relief under K.S.A. 2018 Supp. 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. 2018 Supp. 60-1503(a). A district court should dismiss an
inmate's K.S.A. 2018 Supp. 60-1501 petition if the petitioner fails to assert a violation of
a constitutionally protected interest. Anderson v. McKune, 23 Kan. App. 2d 803, 806-07,
937 P.2d 16 (1997).

We exercise unlimited review over a district court's summary denial of a K.S.A.
2018 Supp. 60-1501 petition. Johnson, 289 Kan. at 649. Similarly, 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.

Grissom claims his due process rights were violated during his 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 nature and extent of the
process to which the prisoner is entitled. Washington v. Roberts, 37 Kan. App. 2d 237,
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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 a sanction of 15 days in disciplinary
segregation. Grissom does not suggest that his disciplinary violations resulted in any
collateral consequences. Importantly, Grissom does not argue his sanction implicated any
life or property interest. As a result, we next consider whether Grissom was deprived of a
protected liberty interest.

As a general legal principle, the sanction of disciplinary segregation does not rise
to the level of a constitutionally protected liberty interest. See Sandin v. Conner, 515 U.S.
472, 486, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995); Hardaway v. Larned Correctional
Facility, 44 Kan. App. 2d 504, 505, 238 P.3d 328 (2010). Our Supreme Court has
specifically held that a prisoner has no protected liberty interest in remaining in the
general prison population. Murphy v. Nelson, 260 Kan. 589, Syl. ¶ 9, 921 P.2d 1225
(1996).

We note, however, that in Jamerson v. Heimgartner, 304 Kan. 678, 685, 372 P.3d
1236 (2016), our Supreme Court stated in dicta that the duration of segregated placement
is a factor that courts must consider in determining whether an inmate has demonstrated a
liberty interest infraction. This is because in extreme cases, courts may deem duration the
dominant factor. For example, the inmate in Jamerson had been subjected to over 1,000
days of administrative segregation. But here, Grissom's sanction to disciplinary
segregation was brief and he fails to show how it constituted an atypical and significant
hardship in relation to the ordinary incidents of prison life which might implicate a liberty
interest. See Sandin, 515 U.S. at 486 (30-day disciplinary sanction implicated no liberty
interest).

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Despite Grissom's disciplinary conviction and sanction, he has suffered no
deprivation that implicates a constitutionally protected liberty interest. Since Grissom
failed to assert the requisite deprivation of a constitutionally protected interest, the district
court did not err in summarily denying his K.S.A. 2018 Supp. 60-1501 petition. Because
we affirm on this basis, we decline to address the district court's alternative reason that
Grissom's petition was moot.

Affirmed.