Longoria v. Kansas Dept. of Corrections

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NOT DESIGNATED FOR PUBLICATION

No. 114,002

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ANTHONY LONGORIA,
Appellant,

v.

KANSAS DEPARTMENT OF CORRECTIONS,
Appellee.


MEMORANDUM OPINION

Appeal from Ellsworth District Court; RON SVATY, judge. Opinion filed May 27, 2016.
Affirmed.

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

Robert E. Wasinger, legal counsel, of Kansas Department of Corrections, for appellee.

Before HILL, P.J, STANDRIDGE and ATCHESON, JJ.

Per Curiam: Anthony Longoria, an inmate in the Kansas correctional system,
appeals the dismissal of a habeas corpus action he filed in Ellsworth County District
Court challenging administrative discipline imposed on him for violating prison rules.
The district court summarily dismissed his petition for failing to list all civil actions
Longoria had filed in the last 5 years and for failing to state facts that, even if undisputed,
would entitle Longoria to relief. For the reasons stated below, we affirm the district
court's decision to dismiss the petition.


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FACTS

Longoria is an inmate at Ellsworth Correctional Facility (ECF) in the custody of
the Kansas Department of Corrections (KDOC). On September 13, 2014, Corrections
Officer E. Sullivan filed a disciplinary report alleging Longoria violated K.A.R. 44-12-
901 by possessing dangerous contraband, violated K.A.R. 44-12-903 by possessing
tobacco contraband, and violated K.A.R. 44-12-304 by disobeying orders. Sullivan stated
the following facts in the disciplinary report:

"On the above date and approximate time[, w]hile I, CSI Sullivan was
conducting rounds in A-pod[,] I stopped at cell A-202 and instructed inmate Raulerson,
Dalton 108084 to open his cell door. As I started to talk with inmate Longoria, Anthony
88906 who also lives in A-202[] I noticed he kept his right hand on the side of a couple
of large books sitting on the desk table. I asked inmate Longoria what he had in his hand
and he stated: 'nothing.' After asking him several more times he finally handed me a
Pepsi Cola can which had a wrap around it used as smoking [p]araphernalia. Underneath
the can is a Vaseline base with what appears to be a small rolled up cigarette with a red
colored pop tab covering the cigarette. Inmate Longoria is in violation of 44-12-901(1),
Dangerous contraband, Class I. When I asked inmate Longoria what else he had he again
said nothing. At that time, I asked him again and he handed me several pages ripped out
from a Bible. Inmate is in violation of 44-12-903(3), Tobacco contraband, Class I. I
started walking over towards Longoria and he immediately placed something into his
mouth. I instructed him to take it out of his mouth and not to swallow it. Inmate Longoria
is in violation of 44-12-304(a), Disobeying orders, Class I. At that time, I called for an
officer needs assistance and placed [Longoria] into handcuffs. I directed inmate Longoria
to open his mouth and at that time he placed his hand up to his mouth and threw a small
zip lock baggie onto the chair. After inspecting the baggie I noticed there is a small
amount of a black unknown substance. On the desk I also found a little squirt bottle with
an unknown substance, I asked inmate Longoria why he spit the baggie out and he stated:
'I couldn't swallow it.' Evidence was tagged and placed into the Temporary Evidence
Locker."

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After an evidentiary hearing on the allegations set forth above, Longoria was
found guilty of disobeying an order in violation of K.A.R. 44-12-304(a) and received a
sanction of 7 days of segregation (with a credit of 7 days already served) and 15 days of
restriction of privileges. Longoria also was found guilty of possessing dangerous
contraband in violation of K.A.R. 44-12-901, for which he received a sanction of 7 days
in segregation (with a credit of 4 days already served) and 15 days of restricted
privileges. The charge alleging Longoria possessed tobacco contraband in violation of
K.A.R. 44-12-903 ultimately was dismissed.

After exhausting his administrative remedies, Longoria filed a K.S.A. 2015 Supp.
60-1501 petition with the district court alleging insufficient evidence to support the
violations as well as a deprivation of his right to due process and to freely exercise his
religion. The district court summarily dismissed the petition for failing to list all civil
actions Longoria had filed in the last 5 years and for failing to state a claim but provided
no narrative explanation of the ruling.

ANALYSIS

On appeal, Longoria argues the district court erred in summarily dismissing his
K.S.A. 2015 Supp. 60-1501 petition because (1) the district court inaccurately found that
Longoria had not listed all civil actions filed in the last 5 years as required by K.S.A. 60-
1502(3); (2) the evidence presented at the hearing was insufficient to support Longoria's
conviction; (3) Longoria was not provided with a fair and impartial disciplinary hearing;
and (4) the ECF General Order 09-114 violated Longoria's due process rights on its face.
Alternatively, Longoria argues the district court should have liberally construed and
analyzed his claim as a civil rights violation pursuant to 42 U.S.C. § 1983 (2012).



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Summary dismissal

In order to state a claim for relief under K.S.A. 2015 Supp. 60-1501, an inmate
appealing from a prison disciplinary sanction must assert the deprivation of some
constitutionally protected interest. Otherwise, the petition may be summarily dismissed.
Anderson v. McKune, 23 Kan. App. 2d 803, 806-07, 937 P.2d 16, rev. denied 262 Kan.
959, cert. denied 522 U.S. 958 (1997); see Wolff v. McDonnell, 418 U.S. 539, 557-58, 94
S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234
(2005). KDOC argues that the disciplinary segregation and the restricted privileges
imposed on Longoria as sanctions did not rise to a protected liberty interest required to
avoid summary dismissal of a K.S.A. 2015 Supp. 60-1501 petition. KDOC is correct. Our
Supreme Court has held that a prisoner has no protected liberty interest in remaining in
the general prison population rather than being separated for a time. Murphy v. Nelson,
260 Kan. 589, Syl. ¶ 9, 921 P.2d 1225 (1996); see generally Sandin v. Conner, 515 U.S.
472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995); McKune, 23 Kan. App. 2d 803. The
Tenth Circuit also has held that punishments of disciplinary segregation for 7 days and
restricted privileges for 30 days together do not implicate a recognized liberty interest.
Grossman v. Bruce, 447 F.3d 801, 806 (10th Cir. 2006).

As for the 1-year visitation suspension stemming from Longoria's attempt to
swallow evidence, the Tenth Circuit recently held that restrictions on a prisoner's
visitation with family did not infringe on a clearly established liberty interest. See
Cleveland v. Martin, 590 Fed. Appx. 726, 732 (10th Cir. 2014) (unpublished opinion).

Because Longoria has failed to allege he was deprived of a recognized liberty
interest, the district court did not err in summarily dismissing his K.S.A. 2015 Supp. 60-
1501 petition. Because summary dismissal is proper, we do not address the enumerated
allegations of error in Longoria's brief.

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42 U.S.C. § 1983

Alternatively, Longoria argues the district court erred by failing to liberally
construe his pro se K.S.A. 2015 Supp. 60-1501 petition as a civil action for deprivation of
his constitutional rights pursuant to 42 U.S.C. § 1983.

A K.S.A. 2015 Supp. 60-1501 petition may be construed as raising a 42 U.S.C. §
1983 claim when the petitioner argues facts that show (1) the petitioner was engaged in a
constitutionally protected activity; (2) the defendant's actions caused the petitioner to
suffer an injury sufficient to chill a person of ordinary firmness from pursuing the
activity; and (3) the defendant's adverse action was substantially based on the petitioner's
exercise of a constitutionally protected right. Bloom v. Arnold, 45 Kan. App. 2d 225,
Syl. ¶ 8, 248 P.3d 752 (2011); Grossman v. Werholtz, No. 105,708, 2011 WL 6385650, at
*5 (Kan. App. 2011) (unpublished opinion). The burden is on the party making the claim
to designate facts in the record to support the claim. In the absence of such facts, the
claim of error fails. In considering a motion to dismiss, the court will assume the truth of
the petitioner's factual allegations. Bloom, 45 Kan. App. 2d 225, Syl. ¶ 1; Grossman,
2011 WL 6385650, at *5-6.

In his K.S.A. 2015 Supp. 60-1501 petition, Longoria alleged that the corrections
officer took the following items from his cell at the time of the incident: 5 pages he had
torn out from the Bible, a religious candle (the soft drink can), and a squirt bottle
allegedly filled with "religious oil." Longoria argues that depriving him of these religious
items constitutes a violation of his right to the free exercise of his religion under the First
Amendment to the United States Constitution.

Even assuming all of the facts alleged by Longoria in his petition were true, he has
failed to allege facts to support any of the three essential elements required to state a
claim under 42 U.S.C. § 1983. Specifically, Longoria does not allege that he was engaged
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in a constitutionally protected activity, that confiscation of the 5 pages he had torn out
from the Bible, the soft drink can, and the squirt bottle caused Longoria to suffer an
injury sufficient to chill a person of ordinary firmness from pursuing the constitutionally
protected activity or that the act of confiscating the Bible pages, the can, and the bottle
was substantially based on Longoria's exercise of a constitutionally protected right.
Therefore, the district court did not err when it failed to construe it as such.

Affirmed.