Hernandez v. Secretary of Corrections

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NOT DESIGNATED FOR PUBLICATION

Nos. 119,838
119,839
119,840
119,841
119,842

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEVEN HERNANDEZ,
Appellant,

v.

SECRETARY OF CORRECTIONS, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed December
6, 2019. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Sherri Price, special assistant attorney general, of Lansing Correctional Facility, for appellees.

Before GARDNER, P.J., GREEN and ATCHESON, JJ.

ATCHESON, J.: Steven Hernandez, an inmate held in the Kansas prison system,
filed a series of actions under K.S.A. 60-1501 challenging a Kansas Department of
Corrections regulation requiring confiscation of incoming prisoner mail containing
impermissible sexually oriented content. The Leavenworth County District Court denied
Hernandez relief in five cases that have been consolidated on appeal. Based on the
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arguments Hernandez has presented, we find no grounds to reverse the district court's
rulings.

While incarcerated at the prisons in El Dorado and Lansing in 2016 and 2017,
Hernandez requested various catalogues and magazines be mailed to him. Prison
employees inspect incoming mail for inmates to make sure the materials do not amount to
contraband or otherwise violate institutional regulations. During those inspections,
employees identified several catalogues, an issue of Esquire magazine, and an issue of
Hot Bike magazine addressed to Hernandez as violating K.A.R. 44-12-313, a regulation
that prohibits inmates from possessing "sexually explicit materials." Prison officials
confiscated the publications and notified Hernandez of their actions. Hernandez
challenged the seizures through an established Department of Corrections review process
to no avail. He then filed a separate habeas corpus action under K.S.A. 60-1501 attacking
each seizure as a violation of his free speech rights protected in the First Amendment to
the United States Constitution and his due process rights under the Fourteenth
Amendment. The actions were filed in the Leavenworth County District Court, since
Hernandez was then being confined at the Lansing prison. See K.S.A. 60-1501(a) (action
to be filed in county where unconstitutional "restraint is taking place").

The district court held a joint hearing on all of the cases in February 2018 without
formally consolidating them. The district court issued separate rulings in each case about
two months later denying Hernandez any relief. Hernandez appealed all of the adverse
rulings, and we consolidated the cases for briefing, argument, and decision.

As Hernandez has framed his appeal, we do not perceive any disputed material
facts. The issues, therefore, present questions of law that we may resolve without any
particular deference to the district court. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d
780 (2010) (appellate court exercises unlimited review over question of law); State v.
Bennett, 51 Kan. App. 2d 356, 361, 347 P.3d 229 (when material facts undisputed, issue
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presents question of law), rev. denied 303 Kan. 1079 (2015); Estate of Belden v. Brown
County, 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011) (legal effect of undisputed
facts question of law).

Two Department of Corrections regulations figure in the issues Hernandez has
raised on appeal. As we have indicated, K.A.R. 44-12-313 prohibits inmates from
possessing sexually explicit materials. Pertinent here, the regulation identifies such
materials as those having "the purpose of . . . sexual arousal or gratification and . . .
contain[ing] nudity, which shall be defined as the depiction or display of any state of
undress in which the human genitals, pubic region, buttock, or female breast at the point
below the top of the aerola [sic] is less than completely and opaquely covered." K.A.R.
44-12-313(b)(1). The other regulation applies generally to inmate mail and outlines an
internal procedure for inmates to contest the confiscation of incoming mail. K.A.R. 44-
12-601 (2017 Supp.). If inmates challenge the seizure of materials, those items are sent
by regular mail from the prison to the Department of Corrections headquarters in Topeka
for administrative review. K.A.R. 44-12-601(d)(2)(D) (2017 Supp.) (protest forwarded to
the secretary of corrections or his or her designee "for final review"). An inmate is
required to pay the postage for delivery of the disputed materials to Topeka. But the
Department of Corrections will advance the postage costs of official mail to indigent
inmates. The department may recoup those costs from funds that later become available
to the particular inmate. K.A.R. 44-12-601(f)(3) (2017 Supp.).

At the outset, we take a couple of procedural matters off the table. Hernandez has
standing to challenge the regulations insofar as they have been applied to him. Prison
officials have seized materials mailed to him as being sexually explicit in violation of
K.A.R. 44-12-313. After requesting administrative reviews of those seizures, Hernandez
had to pay the postage to have the materials sent from the prison to Topeka. Nobody
disputes that Hernandez has exhausted the available administrative remedies, clearing the
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way for him to seek relief under K.S.A. 60-1501. Venue in Leavenworth County was not
contested as to the seizures occurring elsewhere and is immaterial now.

For his first point on appeal, Hernandez contends the requirement that inmates pay
the postage for sending confiscated materials from the prison to the Department offices in
Topeka for administrative review amounts to "an institutional fine and punishment" for
exercising constitutionally protected due process rights. We disagree. The amount of
money is comparatively small, as Hernandez concedes. From the district court orders, we
gather the total amount of postage for all five cases was less than $15. We recognize that
inmates typically earn nominal wages at prison jobs. But the postage costs are not so
onerous they create a constitutional deprivation by unduly burdening or effectively
precluding administrative review.

The Kansas Supreme Court recently recognized that a reasonable fee imposed for
administrative review of an adverse determination affecting a protected property right or
interest does not offend constitutional due process protections. Creecy v. Kansas Dept. of
Revenue, 310 Kan. 454, 464, 447 P.3d 959 (2019). A significant component of an
acceptable fee structure is a bypass permitting indigent persons to access the review
process without having to come up with the payment. 310 Kan. at 464-65 (finding $50
fee for administrative review of driver's license suspension constitutionally infirm
without provision waiving or deferring payment based on indigence). Although the
postage costs may not be identical to an administrative filing fee, they are sufficiently
similar that the due process considerations recognized in Creecy apply and permit their
assessment to an inmate challenging the confiscation of materials as sexually explicit in
violation of K.A.R. 44-12-313. We think that's particularly true given the comparatively
small amount of money involved coupled with a bypass permitting indigent inmates
access to administrative review without having to pay in advance.

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Hernandez raises two collateral arguments that are unavailing in this context. First,
he says the Department could use some other means of transmitting the challenged
materials that entails no cost to the inmates, such as scanning and e-mailing the
documents or using an intraagency delivery system. Electronic transmission presumably
would be an option; a departmental delivery system is not so obvious a method. But the
Department of Corrections has the right to choose among reasonable alternatives, and
requiring an inmate to pay postage for getting the challenged materials from a prison to
the agency's headquarters in Topeka is permissible. Second, Hernandez says he was not
allowed to view the confiscated materials before initiating his administrative challenge
and paying the postage to have those materials mailed to Topeka. So he contends he
could not make a reasoned determination about whether to incur those costs. On the
narrow issue Hernandez has framed, we do not find his inability to examine the materials
turned the requirement he pay the postage into a due process violation.

For his second point on appeal, Hernandez contends K.A.R. 44-12-313 is
constitutionally overbroad because it defines sexually explicit materials to include any
visual depiction of the unclothed human buttock. And he says in many circumstances a
picture of a bare butt would not be sexually explicit. Although the factual premise may be
correct, that fact alone is legally insufficient to render the regulation constitutionally
overbroad and, thus, unenforceable. A statute or regulation is constitutionally overbroad
if it contains a prohibition that extends to a substantial amount of speech or conduct
protected under the First Amendment. See Grayned v. City of Rockford, 408 U.S. 104,
114-15, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); State v. Boettger, 310 Kan. ___, 450
P.3d 805, 808 (2019).

Hernandez' argument falters for two reasons. First, the regulation does not define
something as sexually explicit simply because it contains a photograph or drawing of an
unclothed buttock. The material also must have "the purpose" of sexual arousal or
gratification. And that purpose appears to depend upon the intent of the author or
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publisher. So, presumably, an article in a recognized medical journal illustrated with a
photograph of naked buttocks would not be treated as contraband under K.A.R. 44-12-
313.

Second, this regulation applies to inmates being held in the Kansas prison system,
meaning they are convicted felons serving terms of incarceration as part of their
punishment. Although convicted felons retain certain core constitutional protections
while in prison, their rights, including those enumerated in the First Amendment, may be
curtailed to accommodate the legitimate objectives of prison administration, including
managing an inmate population in ways that promote both security and rehabilitation.
Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). In Turner, the
Court identified several factors to be considered in assessing regulations or practices
restricting inmates' constitutional rights: (1) a rational connection between the regulation
and a legitimate governmental interest; (2) an alternative means of exercising the
constitutional right; (3) the comparative effect of the regulation and the proposed
alternative on guards, other inmates, and "the allocation of prison resources generally";
and (4) "ready alternatives" to the restrictive regulation. 482 U.S. at 89-91. As a general
matter, the courts defer to prison administrators in fashioning regulations balancing
inmate rights with legitimate penological goals and institutional needs and will step in
only if a regulation lacks a reasonable relationship to identified goals and needs. 482 U.S.
at 89; Washington v. Werholtz, 40 Kan. App. 2d 860, 864, 197 P.3d 843 (2008).

This court considered K.A.R. 44-12-313 in Washington and found the prohibition
on possession of sexually explicit materials to be constitutionally permissible, consistent
with the criteria outlined in Turner. The United States Court of Appeals for the Tenth
Circuit reviewed a constitutional challenge to K.A.R. 44-12-313 and came to the same
conclusion. Sperry v. Werholtz, 413 Fed. Appx. 31, 33 (10th Cir. 2011) (unpublished
opinion).

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Given the governing legal principles, including the deference accorded prison
officials, we cannot say that Hernandez has shown K.A.R. 44-12-313 to be
unconstitutionally overbroad because the regulation prohibits inmates from possessing
materials that have the purpose of fostering sexual arousal or gratification and contain
visual depictions of unclothed buttocks.

For his final point on appeal, Hernandez contends the Department of Corrections
could and should implement a policy that offending sexually explicit content be excised
from any mailed materials and the expurgated remainder be given to the inmate. As an
example, Hernandez cites the notification he received that an issue of Esquire had been
confiscated as sexually explicit. The notice identifies three pages of the magazine that
contain photographs the reviewing officer believed violated K.A.R. 44-12-313. One of
them appeared on page 122, so the magazine had at least that many pages. And, in turn,
119 of those pages apparently contained nothing the reviewer found to be sexually
explicit under the regulation. Hernandez suggests the Department of Corrections ought to
have removed the offending pages and forward the rest of the magazine to him.

The Department could have adopted a regulation like that, but it has no
constitutional obligation to do so. Hernandez' argument really turns on an application of
the third and fourth factors identified in Turner—the availability of an alternative policy
that preserves both the functionality and objectives of the challenged regulation but
permits a greater measure of constitutional freedom to the inmates. As outlined in Turner,
an inmate bears the burden of identifying a substitute policy and establishing it to be an
"easy" alternative with only "de minimis cost to valid penological interests" including the
efficient use of prison personnel. 482 U.S. at 90-91. Hernandez did not assert this
argument in the district court and developed no evidence to support his suggestion as an
acceptable alternative within the relatively narrow confines of Turner.

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We have no idea about the volume of incoming mail that would have to be
thoroughly reviewed and then edited page by page to remove the offending content. We
similarly have no information about how reviewers now handle much of the material.
Other notifications to Hernandez that are included in the record on appeal indicate simply
that the particular publication violates K.A.R. 44-12-313 without identifying specific
pages or reasons. In those instances, the reviewer may have found one prohibited image
in the mailed material, stopped looking, and moved on to the next item. Hernandez'
proposal would substantially increase the workload if that were the case. Likewise,
removing multiple photographs or other images from lengthy publications could be quite
time consuming. Under Turner, Hernandez has to show his proposal would be about as
effective and efficient in advancing the Department's legitimate objectives. He cannot
carry that burden on this record.

Having carefully examined each of the issues Hernandez has raised on appeal, we
conclude he has demonstrated no reversible error in the district court's rulings in these
consolidated cases.

Affirmed.