May v. Pryor

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NOT DESIGNATED FOR PUBLICATION

No. 113,777

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TOMMY MAY,
Appellant,

v.

REX PRYOR, Warden, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed January 29,
2016. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2014 Supp. 21-6820(g) and (h).

Before MALONE, C.J., PIERRON, J., and WALKER, S.J.

Per Curiam: Tommy May appeals the district court's summary denial of his
petition for a writ of mandamus on the ground that mandamus is not an appropriate
remedy for an inmate aggrieved by a disciplinary sanction. Finding no error, we affirm.

In August 2014, Ellsworth Correctional Facilities (ECF) authorities learned from a
confidential informant that May had committed battery of another inmate, who had been
discovered that morning with numerous injuries. After a disciplinary hearing, the hearing
officer found May guilty and imposed sanctions of 24 days in disciplinary segregation
and 21 days of restricted privileges. May appealed to the Secretary of the Department of
Corrections (DOC) on the grounds that there was insufficient evidence to support the
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finding that he had committed the battery, but the Secretary approved the decision on
November 18, 2014.

On December 12, 2014, May filed a petition for writ of mandamus pursuant to
K.S.A. 60-801. May claimed that the hearing officer failed to follow the regulations
applicable to the officer's reporting the alleged battery, investigating it, apprehending
May, and conducting the disciplinary hearing. He also asserted there was insufficient
evidence to show that he had committed the battery. On January 8, 2015, the district court
filed a memorandum decision denying the petition and noting that mandamus relief is an
extraordinary remedy available only when there is no ordinary remedy; the district court
found that May could have sought relief under K.S.A. 60-1501. The district court also
found that even if it were to liberally construe May's pleading as a K.S.A. 60-1501
petition, it would fail on the merits because May was not deprived of a constitutionally
protected interest. Accordingly, the court denied May's petition. He timely appealed.

"'Whether mandamus lies is dependent upon an interpretation of the applicable
procedural and substantive statutes, over which this court has unlimited review.
[Citations omitted.]'" State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 443, 172
P.3d 1154 (2007). K.S.A. 60-801 provides: "Mandamus is a proceeding to compel some
inferior court, tribunal, board, or some corporation or person to perform a specified duty,
which duty results from the office, trust, or official station of the party to whom the order
is directed, or from operation of law." Yet "[m]andamus is 'not a common means of
obtaining redress, but is available only in rare cases, and as a last resort, for causes which
are really extraordinary.' [Citation omitted.]" Bohanon v. Werholtz, 46 Kan. App. 2d 9,
12-13, 257 P.3d 1239 (2011). "Mandamus is not appropriate where '"a plain and adequate
remedy at law exists."' [Citation omitted.]" Willis v. Kansas Highway Patrol, 273 Kan.
123, 128, 41 P.3d 824 (2002).

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We have previously ruled, as the district court did here, that mandamus is not an
appropriate remedy for constitutional due process violations during the DOC disciplinary
process. See, e.g., Bohanon, 46 Kan. App. 2d at 12-13. The "plain and adequate remedy
at law" for such a violation lies in K.S.A. 60-1501, which we have described as "a
procedural means through which a prisoner may challenge the mode or conditions of his
or her confinement, including administrative actions of the penal institution. [Citations
omitted.]" See Safarik v. Bruce, 20 Kan. App. 2d 61, 67, 883 P.2d 1211, rev. denied 256
Kan. 996 (1994). May's petition for mandamus, in its own words, "hangs on the claim
that petitioner's due process rights have been violated." Thus, the district court correctly
ruled that the appropriate avenue for relief was K.S.A. 60-1501, not mandamus.

May argues that relief under K.S.A. 60-1501 is not available to him because, as
the district court noted, the sanctions he suffered would not allow a successful K.S.A. 60-
1501 petition. It is true that "[t]o gain court review of a prison disciplinary sanction, the
inmate's claim under K.S.A. 60-1501 must assert the deprivation of some constitutionally
protected interest. Otherwise, the petition may be summarily dismissed. [Citations
omitted.]" Hardaway v. Larned Correctional Facility, 44 Kan. App. 2d 504, 504-05, 238
P.3d 328 (2010). Neither the loss of privileges nor disciplinary segregation—the
sanctions imposed here—rise to the level of a deprivation of a constitutionally protected
interest. See 44 Kan. App. 2d at 505 (stating disciplinary segregation does not implicate a
constitutionally protected interest); Walling v. Riggin, No. 112,052, 2015 WL 3875085,
*5-6 (Kan. App. 2015) (unpublished opinion) (citing Ramirez v. State, 23 Kan. App. 2d
445, 447, 931 P.2d 1265, rev. denied 262 Kan. 962 [1997], as stating same for loss of
privileges), rev. denied___ Kan. ___ (September 14, 2015). Therefore, as the district
court ruled below and May acknowledges now, a K.S.A. 60-1501 petition brought as a
result of these disciplinary proceedings would have failed.

Likelihood of success, however, does not determine the appropriate avenue for
relief. May's complaints are best suited for determination in the context of a K.S.A. 60-
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1501 proceeding. Accordingly, we hold that the district court did not err in summarily
denying May's petition for a writ of mandamus.

Affirmed.