Guilbeaux v. Schnurr

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NOT DESIGNATED FOR PUBLICATION

No. 120,458

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHRISTOPHER A. GUILBEAUX,
Appellant,

v.

DAN SCHNURR,
Appellee.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed November 1, 2019.
Affirmed.

Chris J. Pate, of Pate & Paugh, LLC, of Wichita, for appellant.

Joni Cole, legal counsel, El Dorado Correctional Facility, for appellee.

Before GREEN, P.J., BRUNS, J., and WALKER, S.J.

PER CURIAM: This K.S.A. 60-1501 action arises out of a prison disciplinary
proceeding. Christopher Guilbeaux—an inmate at the El Dorado Correctional Facility—
filed this action after being disciplined at the prison for causing a disruption in which he
hit a corrections officer in the face. In addition, Guilbeaux was disciplined for possession
of tobacco contraband in violation of prison regulations. As a result of his violations, a
hearing officer imposed 90 days of restrictions and ordered him to pay $50 in fees.
Guilbeaux subsequently filed a petition pursuant to K.S.A. 60-1501, alleging various due
process violations. The district court summarily dismissed the petition. Finding no
reversible error, we affirm the district court.
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FACTS

Around 1 p.m. on October 19, 2017, Guilbeaux "was behaving in a disruptive
manner by yelling, cursing, making gun like gestures with his hands, pointing them at . . .
staff, and making gun noises like he was shooting at [them]." Although a correctional
officer ordered him several times to turn around so he could be restrained, Guilbeaux
refused to comply. While the officer was attempting to restrain him, Guilbeaux struck
him in the face. As a result of these actions, Guilbeaux was charged with three Class I
offenses—disobeying orders, disruptive behavior, and battery—in violation of prison
rules.

Less than an hour later, Guilbeaux was taken to the medical unit at the prison.
While searching him, officers found two batteries and a piece of paper with a brown
substance inside in his right rear pocket. The paper was burnt on one end and "smell[ed]
like something had been smoked out of it." Accordingly, Guilbeaux was charged with
another Class I offense—possession of tobacco contraband. This charge was set forth in a
separate Disciplinary Report and assigned a separate case number from the previous
charges.

The disciplinary reports show, on their face, that Guilbeaux was served with a
copy of each shortly after 9 p.m. on the day of the alleged infractions. However,
Guilbeaux refused to sign the line acknowledging receipt of the documents. According to
Guilbeaux, he did not receive hard copies of the disciplinary reports. Instead, he claims
that a correctional officer read the complaints to him through the door of the medical
clinic that evening.

Guilbeaux does not dispute that he received a summons and notice of hearing to be
held on October 25, 2017. On the day, however, Guilbeaux asked for a continuance to
prepare his defense, and the hearing officer granted his request. On November 1, 2017,
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the hearing resumed and Guilbeaux testified that he did not have any memory of the
events in question. It is unclear why the hearing was not completed at this time.

The next day, on November 2, 2017, the hearing officer held a telephonic hearing.
Guilbeaux, again, denied memory of the events, raised service and notice objections, and
requested staff assistance to help him prepare his defense. The hearing officer denied this
request "due to [Guilbeaux] not meeting the requirements for a [s]taff assistant."
Thereafter, according to the notes from the hearing, Guilbeaux "became argumentative
towards the [hearing officer] and refused to correct his behavior." As a result, Guilbeaux
was removed from the hearing. However, the hearing officer assigned a staff assistant
who represented that neither "he nor the offender wish to add anything." The hearing was
continued until November 6, 2017.

When the hearing reconvened on November 6, 2017, Guilbeaux, again, appeared
by telephone due to his placement in segregation. During the hearing, the hearing officer
denied a renewed request by Guilbeaux for a staff assistant. According to the hearing
notes, Guilbeaux once again "became argumentative toward this [hearing officer] and
was removed from the hearing due to that behavior." At that point, the hearing officer
appointed a staff assistant who represented that neither "he nor the offender wished to
add anything."

The reporting officers testified under oath and stated that they stood by their
written reports. After considering the evidence, the hearing officer found Guilbeaux to be
in violation of prison rules by committing battery, disobeying orders, and disruptive
behavior in one case. Moreover, the hearing officer found Guilbeaux to be in violation of
prison rules by possessing tobacco contraband in the other case. The hearing officer
assessed Guilbeaux 90 days of restrictions and fined him $45 for the battery, disobeying
orders, and disruptive behavior violations. In addition, the hearing officer fined him $5
for the tobacco possession violation.
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Thereafter, Guilbeaux filed an administrative appeal in the battery, disobeying
orders, and disruptive behavior case but did not file an appeal in the possession of
tobacco contraband case. After the Secretary of Corrections upheld the hearing officer's
decision in the battery, disobeying orders, and disruptive behavior case, Guilbeaux filed a
K.S.A. 60-1501 petition in district court.

On July 19, 2018, the district court entered a six-page order of summary dismissal.
In the order, the district court found that Guilbeaux failed to exhaust his administrative
remedies in the tobacco contraband case because he failed to appeal to the Secretary of
Corrections. Regarding the battery, disobeying orders, and disruptive behavior case, the
district court found that the alleged due process violations did not rise to a constitutional
level. Finally, the district court found that the hearing officer did not abuse his discretion
by requiring Guilbeaux to participate in the disciplinary hearing by telephone due to
Guilbeaux's segregation for disruptive behavior.

ANALYSIS

Exhaustion of Administrative Remedies

On appeal, Guilbeaux first contends that the district court erred by dismissing the
claim in his K.S.A. 60-1501 petition relating to the possession of tobacco contraband
violation for failure to exhaust administrative remedies. Whether a party is required or
has failed to exhaust his or her administrative remedies is a question of law over which
our review is unlimited. Corter v. Cline, 42 Kan. App. 2d 721, 722, 217 P.3d 991 (2009);
Boyd v. Werholtz, 41 Kan. App. 2d 15, 16-17, 203 P.3d 1 (2008). Relevant to this case,
K.S.A. 75-52,138 requires a petitioner to exhaust all administrative remedies "established
by rules and regulations promulgated by the secretary of corrections" before seeking
relief from the district court. Corter, 42 Kan. App. 2d at 722; Laubach v. Roberts, 32
Kan. App. 2d 863, 868-69, 90 P.3d 961 (2004).
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Here, Guilbeaux does not dispute that he failed to appeal the hearing officer's
determination that he violated the prison's tobacco contraband rule to the Secretary of
Corrections. Instead, Guilbeaux contends that compliance with the requirement to file a
separate appeal relating to the tobacco violation was unnecessary. In so arguing,
Guilbeaux asserts that we should apply a judicially created equitable exception to
exhaustion.

In support of his position, Guilbeaux cites State v. Chelf, 46 Kan. App. 2d 522,
263 P.3d 852 (2011). In that case, a panel of this Court found that exhaustion is not
required where "the administrative remedies available are inadequate or compliance with
them would serve no purpose." 46 Kan. App. 2d at 537. Here, there has been no
allegation by Guilbeaux that administrative remedies were unavailable or inadequate.
Instead, Guilbeaux speculates that the requirement to file a separate appeal for the
tobacco violation would have served no purpose. Of course, since he failed to appeal to
the Secretary of Corrections, we have no way of knowing what the outcome would have
been.

Likewise, we note that Chelf involved a personal injury claim by an inmate, while
the present case involves a violation of the internal disciplinary rules of the prison. We
also note that the Kansas Supreme Court questioned—without deciding—the holding in
Chelf in the case of Sperry v. McKune, 305 Kan. 469, 486, 384 P.3d 1003 (2016),
suggesting that courts should not create judicial exceptions to the exhaustion requirement
of statutes. Of course, even in Chelf, the panel recognized that "the exhaustion
requirement set forth in K.S.A. 75-52,138 is a mandatory, but nonjurisdictional,
prerequisite to filing suit that must be strictly enforced by the court." (Emphasis added.)
46 Kan. App. 2d at 533.

Indeed, our Supreme Court has found that where adequate administrative remedies
are available, they are to be followed. See Cole v. Mayans, 276 Kan. 866, 869, 80 P.3d
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384 (2003). In other words, when an administrative remedy is provided by statute or
regulation, such a remedy must ordinarily be exhausted before a party can bring the
matter before the courts. K.S.A. 75-52,138; Cole, 276 Kan. at 869. Here, there was an
administrative remedy provided by K.A.R. 44-13-703 (appeal on the record to Secretary
of Corrections in Class I and II offense cases only). Guilbeaux knew that he could appeal
to the Secretary and simply chose not to follow the appeal procedure after he was found
to have committed a tobacco contraband violation. Accordingly, we affirm the district
court's decision that Guilbeaux failed to exhaust administrative remedies in regards to the
tobacco contraband violation.

Due Process

Guilbeaux also contends that the district court erred in summarily denying his
K.S.A. 60-1501 petition. Specifically, he contends that his due process rights were
violated. The question of whether due process under the Fourteenth Amendment to the
United States Constitution exists in a particular case is a question of law, subject to de
novo review. See Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004). In considering a
due process claim, we apply a two-step analysis. First, we determine whether the State
has deprived Guilbeaux of life, liberty, or property. If so, we then determine the extent
and nature of the due process due. Johnson v. State, 289 Kan. 642, Syl. ¶ 3, 215 P.3d 575
(2009); Hogue v. Bruce, 279 Kan. 848, 850-51, 113 P.3d 234 (2005).

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,
279 Kan. at 850-51. Here, fines were imposed for his violations of prison disciplinary
rules. So, at the least, Guilbeaux's property interests have been implicated. See Stano v.
Pryor, 52 Kan. App. 2d 679, 682, 372 P.3d 427 (2016). Because Guilbeaux sufficiently
implicated his due process rights, we next determine the extent and nature of the due
process that was required.
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In prison disciplinary proceedings, the prisoner is not afforded the full panoply of
rights that a defendant in a criminal proceeding is afforded. Hogue, 279 Kan. at 851
(quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 41 L. Ed. 2d 935
[1974]). "The limitations on the exercise of constitutional rights arise both from the fact
of incarceration and from valid penological objectives—including deterrence of crime,
rehabilitation of prisoners, and institutional security." O'Lone v. Estate of Shabazz, 482
U.S. 342, 348, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987); Rice, 278 Kan. at 320. In
particular, we are to give broad deference to prison officials in maintaining discipline in
prison settings. Swafford v. McKune, 46 Kan. App. 2d 325, 328, 263 P.3d 791 (2011).
"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." Anderson v. McKune, 23 Kan. App. 2d 803, 811, 937 P.2d 16
[1997]).

However, "convicted prisoners do not forfeit all constitutional protections by
reason of their conviction and confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545,
99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); Rice, 278 Kan. at 321. In prison disciplinary
proceedings, inmates are still entitled to certain basic rights. These rights include written
notice of the charges, an impartial hearing, the opportunity to call witnesses as well as
present documentary evidence, and a written statement of the findings and conclusions
reached by the administrative hearing officer. Hogue, 279 Kan. at 851 (quoting In re
Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 [2001]).

Nevertheless, "maintenance and administration of penal institutions are executive
functions and, before courts will interfere, the institutional treatment must be of such a
nature as to clearly infringe upon constitutional rights, be of such character or
consequence as to shock the general conscience, or be intolerable to fundamental
fairness." Crutchfield v. Hannigan, 21 Kan. App. 2d 693, 695, 906 P.2d 184 (1995).
Hence, to avoid summary dismissal of a K.S.A. 60-1501 petition, allegations must be
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made of shocking and intolerable conduct or continuing mistreatment of a constitutional
nature. Crutchfield, 21 Kan. App. 2d at 695; see Washington, 37 Kan. App. 2d at 240.

Here, the face of the disciplinary report shows that it was served on Guilbeaux on
the evening of the incident and that he refused to sign acknowledging receipt. Although
Guilbeaux disputes actually being served with a copy of the disciplinary report on the
evening of the incident, he admits that it was, at a minimum, read to him at that time.
Moreover, he does not dispute that he at least received a copy of the report on November
1, 2017. This would have been prior to any evidence being received by the hearing
officer.

Notably, Guilbeaux has failed to articulate any actual harm that resulted from the
notice he was provided. To the contrary, throughout his K.S.A. 60-1501 petition,
Guilbeaux cites to numerous ways in which he participated at the various stages of the
disciplinary hearing process. Further, Guilbeaux does not dispute that the hearing officer
continued the hearing to give him additional time to prepare his defense. Thus, we do not
find that Guilbeaux's allegations rise to the level of shocking and intolerable conduct or
to the level of continuing mistreatment of a constitutional nature.

Guilbeaux also argues that he was denied the ability to call witnesses or present
documentary evidence. In this regard, the record demonstrates that Guilbeaux made four
witness requests and one request for documents. First, Guilbeaux sought to have the
prison chaplain testify that he was under the influence of demonic possession at the time
of the incident in which he struck a corrections officer. However, the hearing officer
denied this request because the chaplain was not present during the incident, and
Guilbeaux does not appear to challenge that decision. Even if he did, we see no reason to
question the hearing officer's discretion regarding this request.

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In addition, Guilbeaux requested to have an inmate and a staff member testify that
he did not receive written notice of the disciplinary complaints against him until
November 1, 2017. For the same reason, he also sought to obtain video from an infirmary
camera. However, regarding service of the disciplinary report, we have already concluded
that his claim does not rise to the level of a constitutional violation.

Further, Guilbeaux requested to have another inmate testify regarding him being
under the influence of demonic possession. Nevertheless, we do not find that Guilbeaux
was prejudiced by the exclusion of this witness. Notably, Guilbeaux fails to explain the
relevance of this evidence or the harm imposed by not allowing the witness to testify. As
such, we will not consider this unsupported argument. See State v. Arnett, 307 Kan. 648,
650, 413 P.3d 787 (2018) (issues not adequately briefed are deemed waived or
abandoned). Furthermore, after being removed from the hearing, the assigned staff
assistant advised that neither he nor Guilbeaux had any additional evidence to present.
Hence, we do not find that Guilbeaux has alleged a violation that rises to a constitutional
level.

Guilbeaux also argues that he was denied the opportunity to cross examine
witnesses at the hearings. According to the notes from the disciplinary hearing, the only
witnesses were Guilbeaux—who testified that he could not remember the incident—and
the complaining officers—who simply stood by their written reports. Again, we find it to
be significant that Guilbeaux had to be removed from the hearing on two occasions
because of his disruptive behavior and that a staff assistant assigned to represent him told
the hearing officer that neither he nor Guilbeaux wished to add anything.

In light of the nature of disciplinary proceedings, the due process rights of a
prisoner are limited and must be balanced against the needs of the prison officials to
maintain safety. See Rice, 278 Kan. at 320; Swafford, 46 Kan. App. 2d at 328; Anderson,
23 Kan. App. 2d at 809. Here, as a consequence of his own disruptive behavior,
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Guilbeaux chose not to avail himself to the full extent of the hearing process. In that
regard, broad deference is afforded to prison officials in maintaining discipline in prison
settings. See Rice, 278 Kan. at 320, 323; Swafford, 46 Kan. App. 2d at 328; Anderson, 23
Kan. App. 2d at 809. Further, once removed, Guilbeaux's appointed staff assistant chose
not to cross examine the reporting officers, which was within his discretion to do.
Consequently, we conclude that Guilbeaux has also not alleged or demonstrated a
constitutional violation in this regard.

Similarly, Guilbeaux argues that he was improperly denied the ability to appear at
the disciplinary hearing in person. However, a review of the record on appeal reveals that
this was a result of his own disruptive actions. A review of the record also reflects that it
was reasonable for prison officials to believe that Guilbeaux presented a safety concern
that justified his participation in the disciplinary hearing by telephone rather than in
person. Moreover, based on some of his arguments, it appears that he recognizes that he
was aware that he had trouble controlling his actions.

We note that the administrative regulations relating to disciplinary hearings
contemplate that inmates like Guilbeaux may be in segregation at the time of their
hearing. In particular, K.A.R. 44-13-404(e) states:

"Hearings for inmates detained or held in administrative or disciplinary segregation status
may be conducted by telephone, with the inmate remaining in the inmate's cell and
outside the immediate physical presence of the hearing officer and any witnesses,
including the reporting officer, at the discretion of the hearing officer."

Thus, we conclude that Guilbeaux has not asserted a claim rising to a
constitutional level based on having to participate in the disciplinary hearing by telephone
rather than in person.

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We also note that K.A.R. 44-13-408 gives a hearing officer discretion to determine
whether the conditions for staff assistance are met. Here, the hearing officer determined
that these conditions were not met by Guilbeaux and it has not been shown how this
decision constituted an abuse of discretion. Nevertheless, the hearing officer did provide
staff assistance to Guilbeaux after his own disruptive actions resulted in his removal from
the hearing. Further, a review of the record reveals that Guilbeaux meaningfully
participated in his defense during the disciplinary hearings. In fact, he filed several
lengthy motions in each of his disciplinary hearings.

Finally, Guilbeaux argues that the hearing officer was biased against him.
However, he does not allege any facts to support his bare assertion that the hearing
officer was not impartial. As noted above, "[t]he 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." Anderson, 23 Kan.
App. 2d at 811. Accordingly, we conclude that Guilbeaux's alleged constitutional
violation in this regard must also fail.

We, therefore, affirm the district court's summary dismissal of Guilbeaux's K.S.A.
60-1501 petition.

Affirmed.