Hernandez v. Roberts

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NOT DESIGNATED FOR PUBLICATION

No. 116,566

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEVEN HERNANDEZ, JR.,
Appellant,

v.

RAY ROBERTS, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed March 3, 2017.
Reversed and remanded with directions.

M. Blake Cooper, of Cooper Law Offices, LLC, of Andover, for appellant.

Fred W. Phelps, Jr., legal counsel, of Kansas Department of Corrections, for appellees.

Before ARNOLD-BURGER, C.J., ATCHESON and BRUNS, JJ.

Per Curiam: Steven Hernandez appeals the district court's summary dismissal of
his K.S.A. 2015 Supp. 60-1501 petition. On appeal, Hernandez alleges that the El Dorado
Correctional Facility did not have sufficient evidence to conclude that he possessed
dangerous contraband in violation of K.A.R. 44-12-901. He also alleges that the State
violated his constitutional right to due process during the prison disciplinary proceedings.
For the reasons set forth in this opinion, we find that there was not sufficient evidence
presented upon which a reasonable person could find that Hernandez possessed
dangerous contraband, as that term is defined by the regulation. Thus, we reverse the
dismissal of the K.S.A. 60-1501 petition and remand this matter with directions.
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FACTS

Hernandez is a prisoner at the El Dorado Correctional Facility. On May 18, 2015,
an Activities Supervisor found an unknown liquid substance in Hernandez' cabinet in the
hobby craft room of the prison. The Supervisor tested the substance for alcohol and,
according to the Disciplinary Report, the "results came back positive at a .08%."
Believing the substance to be dangerous contraband, the Supervisor filed a Disciplinary
Report charging Hernandez with violating K.A.R. 44-12-901.

In his defense, Hernandez alleged that the substance found in his locker in the
hobby room was "zap glue" that he was using in an art project. On May 22, 2015, a
disciplinary hearing was held. At the beginning of the hearing, Hernandez orally
requested a continuance because a witness he had requested was not present. However,
the hearing officer denied the request and the hearing proceeded.

The hearing officer's notes do not provide much information regarding what
evidence was presented at the hearing. In addition to the information contained in the
Disciplinary Report, it appears that the Supervisor testified at the hearing that the
substance found in Hernandez' art cabinet "smelled like soap." At the conclusion of the
hearing, the hearing officer found Hernandez guilty, by a preponderance of the evidence,
of possessing dangerous contraband.

Hernandez subsequently filed an appeal with the Secretary of Corrections. After
the Secretary of Corrections denied his appeal, Hernandez filed a pro se K.S.A. 2015
Supp. 60-1501 petition in district court on July 7, 2015. The district court summarily
dismissed the petition on November 23, 2015. Thereafter, Hernandez timely filed his
appeal to this court.


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ANALYSIS

On appeal, Hernandez raises two issues: (1) whether the district court erred in
determining there was sufficient evidence to support the findings of the disciplinary
hearing; and (2) whether the district court erred by failing to consider Hernandez' claims
that the State violated his due process rights when he was denied access to a witness.

We exercise unlimited review when considering a summary dismissal of a K.S.A.
60-1501 petition. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). In the
context of inmate disciplinary proceedings, due process requirements are satisfied if some
evidence supports the correctional tribunal's decision. Anderson v. McKune, 23 Kan.
App. 2d 803, 807, 937 P.2d 16 (1997). When determining whether this standard is
satisfied, the relevant question is whether there is any evidence in the record to support
the conclusion reached by the disciplinary authority. May v. Cline, 304 Kan. 671, 674,
372 P.3d 1242 (2016).

Here, the State charged Hernandez with possessing dangerous contraband, which
is defined in K.A.R. 44-12-901(a):

"(1) Any item, or any ingredient or part of or instructions on the creation of an
item, that is inherently capable of causing damage or injury to persons or property, or is
capable or likely to produce or precipitate dangerous situations or conflict, and that is not
issued by the department of corrections or the facilities, sold through the canteen, or
specifically authorized or permitted by order of the secretary of corrections or warden for
use or possession in designated areas of the facility." (Emphasis added.)

Here, we find nothing in the record to support a conclusion that the liquid
substance found in Hernandez' art cabinet to meet this definition of dangerous
contraband. In particular, there is nothing in the record to support a conclusion that the
substance was "inherently capable of causing damage or injury to persons or property" as
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required by K.A.R. 44-12-901. Furthermore, we find nothing in the record to suggest that
Hernandez attempted to consume or otherwise improperly use the solution. At most, the
evidence shows that the Supervisor found a substance that "smelled like soap" and that it
contained ".08%" alcohol. It is important to note that this is the equivalent of .0008 or
eighth ten-thousandths.

As this court has found, alcohol can constitute dangerous contraband as defined by
K.A.R. 44-12-901. Ditges v. Roberts, No. 102,756, 2010 WL 1687902 (Kan. App. 2010)
(unpublished opinion) (upholding a violation of K.A.R. 44-12-901 for possession of a
.3% alcohol solution). Nevertheless, we can find no Kansas case holding that a substance
with an alcohol content as low as .08% constitutes dangerous contraband. To put the
evidence presented in this case into perspective, "non-alcoholic" cereal malt beverages
are permitted by law to contain up to .5% alcohol. 27 C.F.R. 7.71(e) (2016). Accordingly,
the substance discovered in Hernandez' cabinet in the hobby craft room contains 6.25
times less alcohol than "non-alcoholic" cereal malt beverages.

Accordingly, although there is some evidence in the record that the substance in
question contained a very low amount of alcohol, we find no evidence in the record to
support a conclusion that the substance was inherently capable of causing damage or
injury as required. As such, we conclude that the record does not support a determination
that the substance found in Hernandez' cabinet is dangerous contraband in violation of
K.A.R. 44-12-901. Furthermore, because we reach this conclusion, it is unnecessary for
us to reach the other issue presented in Hernandez' brief.

Reversed and remanded to the district court with directions to grant the K.S.A.
2015 Supp. 60-1501 petition and to order that the discipline imposed by the El Dorado
Correctional Facility be rescinded.