Harris v. Roberts

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NOT DESIGNATED FOR PUBLICATION

No. 113,246

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WILLIAM HARRIS,
Appellant,

v.

RAY ROBERTS, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Ellsworth District Court; RON SVATY, judge. Opinion filed September 18, 2015.
Affirmed.

Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellant.

Robert E. Wasinger, of Department of Corrections, for appellee.

Before MALONE, C.J., ARNOLD-BURGER, J., and JOHNSON, S.J.

Per Curiam: During a random search, a security officer at the Lansing
Correctional Facility (Lansing) saw inmate William Harris drop a sock into a nearby coat.
The sock contained a cell phone and charger, and Harris—who insisted that the cell
phone did not belong to him—was sanctioned. Harris appealed to the Secretary of
Corrections (Secretary), who approved the disciplinary action. He then filed a habeas
corpus petition with the district court, arguing that insufficient evidence supported the
sanction and that his due process rights had been violated. The district court denied his
petition, and he now appeals. Finding no error, we affirm.

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FACTUAL AND PROCEDURAL HISTORY

In March 2013, while incarcerated at Lansing, Harris left the day room and headed
into a bunk area—not his own—to wake up inmate Eric Rhymes. His entry into the bunk
area happened to coincide with a security team arriving to conduct a random search. One
of the security officers, Officer Gift, witnessed Harris standing in "a blind spot between
the wall and the lockers." As Gift watched, Harris dropped a sock into a nearby coat. The
sock contained a flip-style cell phone and a charger. The disciplinary report
memorializing this incident accused Harris of possessing an unauthorized communication
device and trafficking in contraband in a correctional facility.

At a subsequent disciplinary hearing, Harris claimed he was "[s]tanding over
Rhymes" when Gift entered the bunk area. Rhymes insisted that the cell phone did not
belong to Harris, and former inmate Theodore McAdams submitted a written statement
claiming that "Harris had no idea, that there was a cell phone in the [bunk area]."
However, neither Rhymes nor McAdams claimed ownership of the phone. The hearing
officer viewed the surveillance footage and discovered that Gift entered the bunk area in
question empty-handed but left with "a white sock hanging out of [the] leg pocket of his
pants."

At one point during the hearing, Harris requested a continuance to speak to two
other individuals. When the hearing officer asked why, Harris responded, "It seems all
the evidence is being denied." Harris also wanted to know what specific video footage the
hearing officer reviewed. But the hearing officer denied the continuance as Harris had
seen all the other evidence, was not authorized to view the video, and "had plenty of time
to prepare a defense."

The hearing officer ultimately determined that Harris was in possession of an
unauthorized communication device and found Harris guilty of the violations. Harris
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received two sanctions: one in which he received 30 days' disciplinary segregation,
60 days' restriction from privileges, a $20 fine, and a loss of 60 days of good time credit,
and another that was identical less the loss of good time credit. The warden approved the
disciplinary action.

Harris appealed to the Secretary, arguing both that his constitutional rights were
violated when the hearing officer refused his continuance and that insufficient evidence
supported the disciplinary violation. After reviewing Harris' case, the Secretary
determined that the hearing officer complied with the appropriate standards and
procedures and that the decision was adequately supported by the evidence. As such, the
Secretary approved the decision.

Having exhausted his administrative remedies, Harris then filed a habeas corpus
petition with the district court. Harris alleged that during the disciplinary hearing, his due
process rights were violated when the hearing officer: (1) limited his right to call
witnesses; (2) excluded portions of cross-examination from the hearing record; (3) denied
him a continuance to interview other witnesses; and (4) refused to allow him to review
security footage. Harris also claimed that insufficient evidence supported the disciplinary
action, as "there was no way for [him] to traffic any . . . telephone" in the facility. The
Secretary moved to dismiss the petition, arguing both that sufficient evidence supported
the action and that Harris received sufficient process.

At a hearing, the Secretary—after conceding that Harris' fines and loss of good
time credit implicated due process—argued that Harris received a fair and impartial
hearing. According to the Secretary, Harris received written notice of the charges, an
opportunity to prepare a defense, and a chance to present evidence. The decision to grant
or deny the continuance, the Secretary argued, laid within the hearing officer's discretion,
which the officer did not abuse. Regarding the video evidence, the Secretary observed
that K.A.R. 44-13-403(l)(1) expressly forbids inmates from viewing security footage. The
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Secretary therefore urged the district court to uphold the disciplinary action on both due
process and evidentiary grounds.

Harris, on the other hand, renewed his contention that he was denied due process
because he was not permitted to view the security camera footage to ensure it was the
right footage and because he was unable to call all the witnesses he wanted.

Having heard all the arguments, the district court granted the Secretary's motion
and dismissed the petition. The district court reasoned that Harris received sufficient
process and that the disciplinary record contained at least some evidence to support the
hearing officer's decision. The district court also noted that it was "probably the most
thorough disciplinary hearing record I have seen."

Harris timely appealed.

ANALYSIS

Sufficient evidence supported the disciplinary action.

On appeal, Harris first argues that the evidence presented at the hearing was
insufficient to prove he possessed and trafficked an unauthorized cell phone while at
Lansing. Harris essentially contends that the hearing officer disregarded his testimony as
well as Rhymes' and McAdams' statements.

Here, the district court conducted a hearing rather than summarily dismissing
Harris' petition. As such, this court must determine whether the district court's factual
findings are supported by substantial competent evidence and are sufficient to support the
court's conclusions of law. Those legal conclusions, however, are subject to unlimited
review. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).
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When a prisoner in a disciplinary proceeding challenges the sufficiency of the
evidence, the decision will be upheld "if there was some evidence from which the
conclusion of the administrative tribunal could be made." Washington v. Roberts, 37 Kan.
App. 2d 237, 246, 152 P.3d 660 (2007). A reviewing court need not examine the whole
record, assess witness credibility, or weigh the evidence; instead, it simply must decide
"whether there exists any evidence in the record to support the conclusion reached by the
disciplinary board." 37 Kan. App. 2d at 246. Under this standard, even "meager"
evidence can support the disciplinary board's findings provided that "'the record is not so
devoid of evidence that the findings . . . were without support or otherwise arbitrary.'"
Anderson v. McKune, 23 Kan. App. 2d 803, 808, 937 P.2d 16, rev. denied 262 Kan. 959,
cert. denied 522 U.S. 958 (1997).

The Secretary compares the facts in this case to Blanchette v. Werholtz, No.
101,969, 2009 WL 2506280 (Kan. App. 2009) (unpublished opinion), and the two cases
are not without their similarities. There, the inmate received a disciplinary report and
sanctions after officers discovered a large shank in his room. The inmate claimed that the
shank was actually found in a common area accessible to many other inmates. After the
inmate exhausted his administrative appeals, the district court granted his habeas corpus
petition based on his argument that he lacked exclusive control of the area where the
shank was found.

On appeal, however, this court reversed. 2009 WL 2506280, at *2-3. Reasoning
that the evidentiary standard for disciplinary proceedings is a low one, this court
reviewed the evidence and determined that because the shank was concealed in a chair
that had been in that inmate's room for some time, some evidence of his guilt existed.
2009 WL 2506280, at *3. Moreover, the inmate in question presented no evidence
demonstrating others' access to his cell and chair. In short, the limited evidence in the
record was sufficient to support the inmate's disciplinary violation.
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Here, like in Blanchette, Harris stresses that the phone was found in a bunk area
not his own and that other inmates—such as those assigned to that particular bunk—had
access to the area where Gift discovered the sock and phone. He also observes that he and
the other inmates denied his knowledge of the phone. But Harris also recognizes that
Gift's testimony indicating that he personally saw Harris drop the sock into the coat is
sufficient to sustain the disciplinary violation. Although Rhymes and McAdams testified
otherwise, Gift's clear statement that he saw Harris try to hide the sock is some evidence
of the violation. Accordingly, we find that sufficient evidence exists in the record to
support the conclusion reached by the Secretary.

Harris' due process rights were not violated.

Harris also argues that his due process rights were violated. Specifically, Harris
alleges that the hearing officer abridged his rights to call witnesses and present evidence
by denying him his continuance and refusing him access to the video footage.

The issue of whether due process has been afforded is a question of law over
which this court exercises unlimited review. Hogue v. Bruce, 279 Kan. 848, 850, 113
P.3d 234 (2005). When, as here, an inmate raises an issue of procedural due process, this
court engages in a two-step analysis. First, the court must determine whether the State
deprived that inmate of life, liberty, or property. 279 Kan. at 850-51. Only if those rights
are implicated must the court determine "the extent and nature of the process which is
due." 279 Kan. at 851.

Here, the Secretary concedes that the fines and loss of good time credit Harris
suffered implicate his due process rights. This position is supported by our Kansas
caselaw. See 279 Kan. at 851 (loss of good time credit); Anderson, 23 Kan. App. 2d at
807 (fines). The question, then, is whether the hearing officer deprived Harris of due
process.
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It is well-settled Kansas law that in disciplinary proceedings

"the full panoply of rights due a defendant in criminal proceedings do not apply. An
inmate's limited rights in a prison disciplinary proceeding include an impartial hearing, a
written notice of the charges to enable the inmate to prepare a defense, a written
statement of the hearing officer's findings as to the evidence and the reasons for the
decision, and an opportunity to call witnesses and present documentary evidence."
Washington, 37 Kan. App. 2d 237, Syl. ¶ 3.

Harris' argument centers on the deprivation of his right to call witnesses and
present documentary evidence. Harris essentially contends that the hearing officer limited
this right by not granting him a continuance and not allowing him to view the video
footage.

The administrative regulations controlling prison disciplinary procedures provide
that a "hearing officer may grant one or more continuances" upon request by the inmate,
reporting officer, or other entities involved in the disciplinary process. K.A.R. 44-13-
402(a). That said, this regulation provides the hearing officer broad discretion when
granting or denying the request. Leek v. Werholtz, No. 97,498, 2007 WL 2377284, at *3
(Kan. App. 2007) (unpublished opinion). Here, Harris requested a continuance in the
middle of the hearing because he wanted to talk to two other individuals. But Harris also
never requested them as witnesses prior to the hearing. Moreover, when pressed for
details about the continuance, Harris focused not on his need to interview these
individuals but on the video footage and the evidence as a whole, saying that he felt as
though "all the evidence is being denied" and that he wanted to know which video the
hearing officer viewed. Having heard this explanation, the hearing officer denied the
continuance.

Nothing in the record suggests that this denial falls outside the broad discretion
afforded hearing officers when granting continuances. Harris asked for the continuance
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after the hearing started, claiming he needed to speak to two individuals he never named
as potential witnesses until that time. He provided no real explanation as to what
information those two witnesses might provide or how their testimony would be
necessary to his defense. In short, the hearing officer's action was not arbitrary, fanciful,
or unreasonable and therefore did not violate Harris' due process rights. See Northern
Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013)
(defining abuse of discretion).

As for the issue concerning the video footage, the inmate in Requena v. Cline, No.
108,395, 2013 WL 1876471, at *3 (Kan. App.) (unpublished opinion), rev. denied 298
Kan. 1203 (2013), raised much the same argument. There, the inmate asked to view video
footage from a certain incident, but that request was denied. He appealed, arguing that the
State's continued refusal to produce the video violated his due process rights. In finding
that no such violation occurred, this court noted that K.A.R. 44-13-403(l)(1) expressly
provides that "'the accused inmate shall not be present when the hearing officer reviews
any facility security videotape evidence.'" 2013 WL 1876471, at *1. The court
categorized this regulation as "a reasonable rule," as an inmate's "[k]nowledge of what
areas are covered or not covered by the cameras could be used to facilitate violence
towards prisoners or personnel." 2013 WL 1876471, at *3. We agree.

Here, the hearing officer personally viewed the footage outside of Harris'
presence, recorded a general description of what he saw, and explained that description to
Harris. As prison regulations restrict Harris' access to such footage, the hearing officer's
characterization of the video is the most that is available to him. Moreover, the fact that
the regulations forbid Harris from watching the video further demonstrates why the
hearing officer acted within his broad discretion when denying Harris' continuance. After
all, Harris—at least in part—requested the continuance to learn more about what footage
the hearing officer viewed. But as Harris could not himself view the video, a continuance
to investigate the exact footage in question would have been futile.
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In short, the Secretary provided Harris notice of the charges against him, an
opportunity to prepare a defense, a written statement of the hearing officer's final
findings, and a chance to call witnesses and present evidence. Nothing in the record
suggests that the hearing officer acted with partiality or otherwise abridged Harris' rights.
Accordingly, the district court's decision is affirmed.

Affirmed.