Ross v. Cline

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NOT DESIGNATED FOR PUBLICATION

No. 118,733

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JEROME ROSS,
Appellant,

v.

SAM CLINE,
Appellee.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed August 17, 2018.
Affirmed.

Jerome Ross, appellant pro se.

Joni Cole, legal counsel, of El Dorado Correctional Facility, for appellee.

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

PER CURIAM: Jerome Ross appeals the summary dismissal of his petition for
habeas corpus relief under K.S.A. 2017 Supp. 60-1501. He contends that the Kansas
Department of Corrections (KDOC) violated his due process rights when it imposed
disciplinary sanctions on him for possession of contraband. Finding that Ross is not
entitled to relief, we affirm.




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Factual and procedural background

While Ross was an inmate at Lansing Correctional Facility, a corrections officer
searched the cell Ross shared with James Walker. The officer found a legal box on the
floor. In that box, under its false bottom, the officer found some bags of
methamphetamine and a cellphone. That officer testified that the false bottom was
noticeable once he moved some items. An officer strip-searched both men and found
methamphetamine on Walker. Walker was charged with possession of methamphetamine
under K.A.R. 44-12-901. Ross was charged with violating K.A.R. 44-12-901, possession
or control of dangerous contraband, and K.A.R. 44-12-211(B), unauthorized possession
of a telephone/communication device. Both are Class I offenses.

At the disciplinary hearing, Ross testified that the box was his and contained his
legal mail, but he had never noticed it had a false bottom. Walker testified that the
cellphone and methamphetamine in Ross' box belonged to him—not to Ross. The hearing
officer found the reporting officer's testimony was credible, Walker's testimony was not
credible, and the charges were substantiated because Ross had exercised control over the
box. Concluding it was more likely true than not that Ross was guilty of the violations
charged, he imposed sanctions including a fine and a loss of 180 days' good time credit
for each violation. Ross exhausted his administrative remedies and then filed a petition
for a writ of habeas corpus in the Leavenworth County District Court.

Ross, as a person who was detained, confined, or restrained of liberty within the
state, properly petitioned the court for a writ of habeas corpus. K.S.A. 2017 Supp. 60-
1501(a). A habeas corpus petition under K.S.A. 60-1501 must allege shocking or
intolerable conduct or mistreatment of a constitutional stature. If the face of the petition
fails to allege such treatment, the district court may dismiss the petition. Bankes v.
Simmons, 265 Kan. 341, 349, 963 P.2d 412 (1998); Corter v. Cline, 42 Kan. App .2d 721,
722, 217 P.3d 991 (2009).
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The Leavenworth County District Court initially issued a writ. But when Ross was
transferred to El Dorado Correctional Facility, his case was transferred to Butler County
as well. There, the district court summarily granted the State's motion to dismiss and
dissolved the writ.

Ross timely appeals, challenging the district court's findings that he received
sufficient procedural due process during his disciplinary hearing and that sufficient
evidence supported his conviction.

Standard of review

K.S.A. 2017 Supp. 60-1503(a) authorizes the summary dismissal of a habeas
corpus petition "[i]f it plainly appears from the face of the petition and any exhibits
attached thereto that the plaintiff is not entitled to relief in the district court." Upon
review, we must accept the facts alleged by the inmate in the petition as true and
determine whether the alleged facts and all of their inferences state a claim. Hogue v.
Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005). We have done so here in stating the facts
above.

We do not independently examine the entire record, evaluate the credibility of
witnesses, or reweigh the evidence. May v. Cline, 304 Kan. 671, 674, 372 P.3d 1242
(2016). When, as here, a prison disciplinary hearing has been held, we defer to the
ensuing decision and will uphold it if it is supported by "some evidence." 304 Kan. at
674. But we have unlimited review over the legal question whether the inmate has been
given due process. Hogue, 279 Kan. at 850.




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Procedural due process

We apply a two-step analysis to an inmate's claim of a due process violation. We
first determine whether State action deprived the inmate of life, liberty, or property. If we
find such a deprivation, we then determine whether the inmate received the extent and
nature of the process due him or her under the circumstances. Hogue, 279 Kan. at 850-51.

The first step is easily met. The imposition of fines implicates an inmate's property
interest, as does the loss of good time credits already earned. In re Habeas Corpus
Application of Pierpont, 271 Kan. 620, 626, 24 P.3d 128 (2001) (good time credits);
Washington v. Roberts, 37 Kan. App. 2d 237, 240, 152 P.3d 660 (2007) (fines). Ross was
fined and lost 180 days' good time credit for each violation. His claims thus raise
constitutionally protected property interests.

The second step—determining whether the disciplinary action violated Ross'
procedural due process rights—requires a look at the record. Prisoners' constitutional
rights are less extensive than those of defendants in criminal proceedings. Wolff v.
McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). The limited
procedural due process rights afforded in prison disciplinary proceedings 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."
Pierpont, 271 Kan. at 627 (citing Wolff, 418 U.S. at 563-66). Those are the rights Ross
was entitled to here.

Ross' petition alleges that the State deprived him of three procedural due process
rights: (1) the right to present a witness; (2) the right to prepare and execute a viable
defense; and (3) the right to a fair hearing before an impartial hearing officer. But as we
detail below, our review of the record convinces us that even if all the factual allegations
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in Ross' petition are true, his petition fails to state a claim upon which relief can be
granted on any of these grounds.

Ross first claims that he was denied the right to present a witness. But the record
shows that he was allowed to call the only witness he requested—his cellmate, Walker.
Walker testified at the hearing and testified favorably to Ross.

Ross' second claim is related—that he was not allowed to present a viable defense
because the hearing officer discredited Walker's testimony "for no reason mentioned in
the record." But the record contains the hearing officer's express finding that Walker's
testimony was not credible. "The trier of facts is not obligated to accept and give effect to
evidence which he considers to be unreliable, even if such evidence is uncontradicted.
Beard v. Montgomery Ward & Co., 215 Kan. 343, 348, 524 P.2d 1159 (1974)." Mansfield
Painting & Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 84, 589 P.2d
643 (1979). The hearing officer's rejection of Walker's testimony was not arbitrary but
was based on the officer's judgment of Walker's lack of credibility.

This claim is much like that made in Beard v. Montgomery Ward & Co., 215 Kan.
343, 524 P.2d 1159 (1974), when the plaintiff contended that the trial court was bound to
believe her testimony about her marriage because it was not directly contradicted. We
refuted that assertion, finding the trier of fact is the sole judge of credibility and need not
credit uncontradicted testimony:

"This is not the law; the trier of fact is the sole judge of the credibility of a witness.
While it 'cannot arbitrarily or capriciously refuse to consider the testimony of any
witness, . . . it is not obliged to accept and give effect to any evidence which, in its honest
opinion, is unreliable, even if such evidence be uncontradicted.' (Collins v. Merrick, 202
Kan. 276, 448 P.2d 1, Syl. ¶ 3. See also, Lehigh, Inc. v. Stevens, 205 Kan. 103, 468 P.2d
177; In re Estate of Johnson, 155 Kan. 437, 125 P.2d 352.)" Beard, 215 Kan. at 348.

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The same is true even when the testimony of two witnesses is consistent and
uncontradicted—the fact-finder need not find that testimony to be credible. See, e.g., Tice
v. Ebeling, 238 Kan. 704, 711, 715 P.2d 397 (1986) (finding that the jury has the
authority to discredit the uncontradicted and unimpeached testimony of a husband and
wife). Such is the case here. No due process violation is potentially shown by the hearing
officer's decision to credit the officer's testimony rather than Ross' and Walker's
testimony.

Ross' third claim is that the hearing officer was biased, partial, and "totally unfair"
because he ignored Walker's testimony. We agree that the hearing officer cannot
arbitrarily or capriciously refuse to consider the testimony of any witness. See Beard, 215
Kan. at 348. But the record shows that the hearing officer did, in fact, consider Walker's
testimony in reaching his decision. Ross has shown no arbitrariness or capriciousness.

The hearing officer's finding that Walker's testimony lacked credibility does not
show bias or prejudice. "'[B]ias' and 'prejudice' . . . refer to the mental attitude or
disposition of the judge toward a party to the litigation and not to any views that he might
entertain regarding the subject matter involved." State v. Foy, 227 Kan. 405, 411, 607
P.2d 481 (1980).

We are not persuaded of error when an inmate offers nothing but his own self-
serving testimony in support of an allegation that the hearing officer was not an impartial
fact-finder. See Swafford v. McKune, 46 Kan. App. 2d 325, 329, 263 P.3d 791 (2011).
Instead, we require more. See, e.g., Johnson v. Roberts, No. 114,162, 2016 WL 2810212,
at *9 (Kan. App. 2016) (unpublished opinion) (finding an actionable claim of bias where
inmate pleaded that the hearing officer had told Johnson during his orientation into the
facility that he would always believe statements made by corrections officers and staff
over statements made by inmates); Germann v. Conover, No. 110,643, 2014 WL
3397184, at *3 (Kan. App. 2014) (unpublished opinion) (same). Ross' petition alleges no
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facts tending to show any personal bias or prejudice of the hearing officer toward Walker
or Ross, and the record discloses none.

Thus, Ross has made no actionable claim of a procedural due process deprivation.
Because Ross failed to establish grounds for the relief requested in his K.S.A. 60-1501
petition, the district court did not err in summarily dismissing his due process claims.

Sufficient evidence

Ross' final argument is that insufficient evidence supports the disciplinary
decision.

An inmate's due process rights are satisfied if "some evidence" supports the
disciplinary decision. Washington, 37 Kan. App. 2d at 246. As the United States Supreme
Court has held, the Federal Constitution does not require evidence that "logically
precludes any conclusion but the one reached by the disciplinary board." Superintendent
v. Hill, 472 U.S. 445, 457, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985).

When an inmate challenges the basis for the hearing officer's decision, due process
demands only a modicum of evidence to support the disciplinary sanction in order "to
prevent arbitrary deprivations without threatening institutional interests or imposing
undue administrative burdens." Hill, 472 U.S. at 455. The United States Supreme Court
has explained why this low burden is appropriate:

"Ascertaining whether this standard is satisfied does not require examination of the entire
record, independent assessment of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there is any evidence in the record that
could support the conclusion reached by the disciplinary board. We decline to adopt a
more stringent evidentiary standard as a constitutional requirement. Prison disciplinary
proceedings take place in a highly charged atmosphere, and prison administrators must
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often act swiftly on the basis of evidence that might be insufficient in less exigent
circumstances. The fundamental fairness guaranteed by the Due Process Clause does not
require courts to set aside decisions of prison administrators that have some basis in fact.
Revocation of good time credits is not comparable to a criminal conviction, and neither
the amount of evidence necessary to support such a conviction, nor any other standard
greater than some evidence applies in this context. [Citations omitted.]" Hill, 472 U.S. at
455-56.

Ross claims that no direct evidence shows he possessed or controlled the items in
his box, as required for a violation of K.A.R. 44-12-901. He focuses on the fact that no
one testified to having seen Ross put anything in the box. Ross argues that his cellmate
had equal access to the box and could have placed the drugs and phone in it when Ross
was elsewhere. He also asserts that the record shows no reason Walker could not have
owned the items in the box, as Walker testified.

But circumstantial evidence can be a sufficient basis for a conviction, and it need
not exclude every other reasonable conclusion. State v. Logsdon, 304 Kan. 3, 25, 371
P.3d 836 (2016). The hearing officer stated that he applied the prison's General Order 9-
106. That order provides that inmates are responsible for the contents of their cell within
their area of control. He concluded that Ross had exercised control over the box by
storing his personal and legal mail in it. That conclusion is supported by Ross' testimony
that he acquired the box and used it as a legal box, as well as by the reporting officer's
statement that the box contained papers with Ross' name on them and that the false
bottom was noticeable once he moved some items. This evidence shown by the record
meets the "some evidence" standard.

Affirmed.