Logan v. Pryor

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NOT DESIGNATED FOR PUBLICATION

No. 114,974


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JARMANE LOGAN,
Appellant,

v.

REX PRYOR,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed August 5,
2016. Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

Sherri Price, of Lansing Correctional Facility, for appellee.

Before MALONE, C.J., HILL and ATCHESON, JJ.

Per Curiam: Prisoner Jarmane Logan contends the district court should have
taken evidence on his habeas corpus petition instead of summarily dismissing it. Logan
contends that the loss of his minimum-wage job in prison was a result of a 60-day
disciplinary action for use of a prohibited stimulant. In opposition, the prison officials
argue that Logan has failed to show the loss of any constitutionally protected liberty
interest and the district court properly dismissed his petition. Because Logan's petition
plainly discloses that he lost his job before any disciplinary action was taken, we agree
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with the district court that he has failed to show the loss of a constitutionally protected
interest. We hold the court properly dismissed his petition.

A positive urinalysis leads to a loss of privileges.

The disciplinary report tells the story:

"On 3-30-15 Inmate Logan reported to work on his scheduled 1430-0100 shift at Zephyr
Products. Due to suspicion of being under the influence of an unknown substance,
Zephyr Products supervisor, Mr. James, transported Logan to their medical facility, OHS
Kansas City, Kansas, and had a UA performed. LCF staff were notified of the UA results
on 4-6-15 which were positive for the drug K-2 spice."

K-2 is a synthetic form of marijuana. Consequently, prison officials charged Logan with
violating the prison rules that prohibit inmates from using unauthorized stimulants.

Following a hearing, a hearing officer convicted Logan of using K-2. As a
sanction for that conviction, the hearing officer restricted Logan's privileges for 60 days.

After losing his appeal to the secretary of corrections, Logan filed this K.S.A.
2015 Supp. 60-1501 petition. He attached to his petition six pages of handwritten
allegations in which he alleged his due process rights were violated because: (1) prison
officials violated various regulations in charging him; and (2) the evidence did not
support his conviction.

The district court summarily dismissed Logan's petition, holding that Logan's
sanction did not rise to the level of the deprivation of life, liberty, or property that is
necessary to state a valid claim for a procedural due process violation.


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Here is the law we will follow.

This court will affirm the summary dismissal of Logan's petition only if, "on the
face of the petition, it can be established that [Logan] is not entitled to relief, or if, from
undisputed facts, or from incontrovertible facts, such as those recited in a court record, it
appears, as a matter of law, no cause for granting a writ exists." Johnson v. State, 289
Kan. 642, 648-49, 215 P.3d 575 (2009); K.S.A. 2015 Supp. 60-1503(a).

To avoid summary dismissal of his petition, Logan had to allege "shocking and
intolerable conduct or continuing mistreatment of a constitutional stature." Johnson, 289
Kan. at 648. In deciding if Logan has satisfied this burden, we consider de novo whether
the facts alleged in Logan's petition, when accepted as true, and all their inferences state a
claim not only on the theories set forth by Logan, but on any possible theory. Washington
v. Roberts, 37 Kan. App. 2d 237, 240, 152 P.3d 660 (2007). Specifically, our task is to
determine whether Logan has stated a valid claim of deprivation of his constitutional due
process rights. This is, of course, a question of law subject to unlimited review by this
court. 37 Kan. App. 2d at 240.

Deciding whether Logan stated a valid claim for a violation of his procedural due
process rights involves two steps. First, we determine whether the warden deprived
Logan of life, liberty, or property. If not, our analysis stops there. If so, then this court
determines "the extent and nature of the process which is due." Hogue, 279 Kan. at 850-
51.

The parties dispute whether we get past the first step under the facts of this case.
Citing Murphy v. Anderson, 260 Kan. 589, 921 P.2d 1225 (1996), the district court held,
in part, that Logan did not make it past this step because the restriction of privileges is not
the type of significant deprivation that implicates a constitutional liberty interest. Logan
does not challenge this holding. An issue not briefed by the appellant is deemed waived
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and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676
(2011).

Logan insists that he stated a valid claim for deprivation of a property interest
based on his statement in his petition that he would not get his job back. According to
Logan, as a direct and mandated consequence of his disciplinary conviction, the warden
removed him from his minimum-wage, private-industry job. Logan likens this to the
imposition of a fine, which our courts consistently recognize to implicate a property
interest under this first step of the due process inquiry. See Washington, 37 Kan. App. 2d
at 240.

The warden responds that even if the loss of a job satisfied the first step, it does
not matter because no evidence indicates that Logan was removed from his private
industry job because of his disciplinary conviction. In support, the warden points out that
Logan's discussion of his job loss in his petition clearly predates the disciplinary hearing.

Even accepting Logan's allegations in his petition as true, Logan cites no authority
to support his contention, and nothing in the record supports the conclusion that the loss
of his job was a "mandated" sanction or result of his disciplinary conviction. Neither
Logan's job loss, nor the restriction of his privileges for 60 days, satisfies the first step of
the due process inquiry.

Not stopping there, Logan argues that even if we find his job loss was not a
"taking of property" for due process purposes, summary dismissal was still inappropriate
because he alleged shocking and intolerable conduct or continuing mistreatment
constituting a significant deprivation of his constitutional rights. In support, he points to
his allegations of various actions of prison officials, which he claimed occurred during
the disciplinary proceeding.
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He does, however, cite a Kansas Supreme Court ruling that a government agency
may not violate its own rules and that such violations render the agency's order unlawful.
Kansas Commission on Civil Rights v. City of Topeka Street Department, 212 Kan. 398,
Syl. ¶ 1, 511 P.2d 253, cert. denied 414 U.S. 1066 (1973). Logan argues that such
conduct, if true, was shocking to the level requiring an evidentiary hearing.

Logan is referring to the timing of the disciplinary action. The record reflects that
Logan's violation—testing positive for a stimulant—occurred on March 30, 2015. The
officer made the written disciplinary report on April 6, 2015, and served it on Long on
April 29, 2015. This is beyond the time provided for in the Department's regulations,
which require such reports to be served within 48 hours after it is issued. See K.A.R. 44-
13-201(a).

Indeed, Logan's hearing on the complaint was not held until May 14, 2015. K.A.R.
44-13-401(a), however, requires disciplinary hearings to be held not more than 7 days
after the disciplinary report is served on the inmate. It appears from Logan's petition that
he was moved to "max" on March 30, 2015, and advised of the positive drug test. He
remained in the "max" unit until he was served with the disciplinary report.

Logan's claim concerning the delay in his disciplinary hearing is not persuasive. In
prison disciplinary proceedings, "[d]ue process '"is not a technical conception with a
fixed content unrelated to time, place, and circumstances.'" [Citations omitted.]" Hogue v.
Bruce, 279 Kan. 848, 851, 113 P.3d 234 (2005). Courts have recognized that a prisoner
has limited due process rights during a disciplinary proceeding, which include:

"'an impartial hearing, a written notice of the charges to enable inmates to prepare a
defense, a written statement of the findings by the factfinders as to the evidence and the
reasons for the decision, and the opportunity to call witnesses and present documentary
evidence.' [Citation omitted.]" Hogue, 279 Kan. at 851.
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Finally, Logan's petition focuses on his detention in the maximum-security unit
but fails to allege that the conditions while in the "max" unit were shocking. A protected
liberty interest may arise when prison authorities impose a restraint on a prisoner's
already quite-limited freedom, and the restraint is atypical and a significant hardship on
the inmate in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515
U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).

Logan does not complain in his petition about any conditions or restrictions
imposed on him while in the "max" unit. In the absence of any allegations of an atypical
or significant hardship, his claims regarding an improper transfer fail to state a justiciable
claim under K.S.A. 2015 Supp. 60-1501.

After considering all of this, we cannot see where Logan has stated a valid due
process claim based on procedural errors at this disciplinary hearing. Indeed, he admits in
his petition that he had lost his job before he was sanctioned.

We affirm the district court.