Snavely v. Heimgartner

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NOT DESIGNATED FOR PUBLICATION

No. 115,123

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WILLIAM H. SNAVELY,
Appellant,

v.

JAMES HEIMGARTNER,
Appellee.


MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed December 2, 2016.
Affirmed.

J. Gordon Gregory, of Wilbert and Towner, P.A., of Pittsburg, for appellant.

Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, for appellee.

Before SCHROEDER, P.J., BUSER, J., and WALKER, S.J.

Per Curiam: William Snavely, an inmate at the El Dorado Correctional Facility,
appeals the district court's summary dismissal of his K.S.A. 2015 Supp. 60-1501 petition.
On appeal, Snavely contends Warden James Heimgartner and the Kansas Department of
Corrections (KDOC) violated his right to due process as a result of disciplinary
proceedings brought against him for violation of a prison rule.

Upon our review of Snavely's petition, we conclude he has failed to allege
"shocking and intolerable conduct or continuing mistreatment of a constitutional stature."
See Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). Accordingly, upon our
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finding that Snavely's claim does not implicate any constitutionally protected interest, we
affirm the district court's summary dismissal of his K.S.A. 2015 Supp. 60-1501 petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 2015, Snavely received a disciplinary report for being in a restricted area of the
correctional facility. The correctional officer who wrote the report indicated that Snavely
had his wheelchair inside a clearly marked restricted area. After a prison administrative
hearing, Snavely was found guilty of the violation and given a punishment of "7 days
restriction." Snavely pursued an internal appeal, which was unsuccessful.

Following the exhaustion of his remedies within the prison facility, Snavely filed
the K.S.A. 2015 Supp. 60-1501 petition which is the subject of this appeal. In the
petition, Snavely contended his conviction was a violation of his right to due process
because the rules pertaining to the restricted area were unclear and he was unaware of
exactly what behavior was expected of him. Snavely also claimed the hearing officer was
biased and Snavely was not allowed to present certain witnesses at the prison disciplinary
hearing. Of particular importance to the resolution of this appeal, Snavely asserted that he
was deprived of a constitutionally protected liberty interest upon his disciplinary
conviction because the Kansas Prisoner Review Board (KPRB) had previously informed
Snavely that he needed to be free of disciplinary convictions if he wanted to be
considered for parole in 2017.

In response to Snavely's petition, Warden Heimgartner and the KDOC filed a
motion to dismiss contending that Snavely's petition should be denied for his failure to
show that a property or liberty interest was at issue.

In considering the matter, the district court acknowledged the circumstances
surrounding Snavely's disciplinary conviction may have been unfair. However, assuming
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everything that Snavely alleged was true, the district court found that Snavely failed to
prove KDOC's conduct was shocking and intolerable or a continuing mistreatment of a
constitutional stature. Accordingly, the district court summarily denied Snavely's petition.
In response, Snavely filed a motion to alter or amend, which was also denied.

Snavely appeals the district court's summary denial of his K.S.A. 2015 Supp. 60-
1501 petition.

ANALYSIS

On appeal, Snavely has two complaints. First, he claims his disciplinary
conviction is invalid because KDOC failed to publish a "rule or law about the restricted
area" which he occupied without authorization. Second, Snavely argues his rights were
violated when the hearing officer did not permit him to call certain witnesses. Snavely
asserts these witnesses would have testified that he was given permission to be in the
restricted area.

In response, KDOC argues that the district court did not err in summarily
dismissing Snavely's petition because no constitutional violation occurred. In particular,
KDOC points out that Snavely does not claim that he was monetarily fined or lost any
earned good time credits—punishment that would constitute a constitutionally protected
property or liberty interest. Absent any violation of a constitutionally protected interest,
KDOC asserts the district court properly denied Snavely's petition.

In considering this appeal, our standard of review provides that an appellate court
exercises unlimited review over cases wherein a district court summarily denies a K.S.A.
2015 Supp. 60-1501 petition. Johnson, 289 Kan. at 648.

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The central issue for our consideration is whether Snavely has met the threshold
standard for pursuing relief under K.S.A. 2015 Supp. 60-1501. In summarily dismissing
Snavely's petition, the district court correctly stated that it was Snavely's burden to show
KDOC's conduct was shocking and intolerable or a continuing mistreatment of a
constitutional stature. See 289 Kan. at 648; Anderson v. McKune, 23 Kan. App. 2d 803,
807, 937 P.2d 16 (1997). The district court concluded, "it would be a reach, at best, to
characterize the decision in this case as shocking and intolerable." We agree.

To state a claim for relief under K.S.A. 2015 Supp. 60-1501, a petition must allege
"shocking and intolerable conduct or continuing mistreatment of a constitutional stature."
Johnson, 289 Kan. at 648. Any analysis of a K.S.A. 2015 Supp. 60-1501 petition
involves a determination as to whether the inmate's Fourteenth Amendment right to due
process was violated. And a threshold determination in this regard is whether the State
has deprived the inmate of life, liberty, or property. Johnson, 289 Kan. at 649.

In this case, the undisputed evidence shows that Snavely was put on restriction for
7 days. Snavely asserts this conviction and punishment constitutes a violation of his
liberty interest because "the K.D.O.C. [KPRB] instructed [Snavely] to remain free from
any disciplinary convictions in order for [him] to obtain [p]arole in 2017." In other
words, Snavely views his purportedly wrongful conviction and punishment as implicating
his liberty interest in being granted parole in 2017.

At the outset, we find Snavely's factual basis for establishing a liberty interest is
overstated. On March 13, 2014, KPRB issued an action notice which passed Snavely for
further parole consideration until April 2017. This notice also contained the
"recommendation" that Snavely "remain free of disciplinary reports" in the future.
Snavely inaccurately presents this simple, common sense advice as a condition precedent
to his obtaining parole in 2017. However, nothing in the action notice stated that Snavely
would be denied parole in 2017 if he received a disciplinary violation.
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Moreover, the action notice lists several other reasons why Snavely was denied
parole in 2014, including the serious nature and circumstances of the crime, objections to
parole, and his failure to demonstrate "behavioral insights necessary to decrease his risk
to re-offend." Some of these reasons, i.e.,"serious nature and circumstances of the crime"
which supported KPRB's denial of parole in 2014, will still be relevant (apart from any
issue regarding disciplinary violations) in 2017 when KPRB reconsiders Snavely's
application for parole. In sum, we find the factual basis for Snavely's claim that he
sustained a deprivation of liberty is speculative.

Apart from the conjectural nature of the factual basis of Snavely's constitutional
claim, the inmate also fails to provide any statutory or caselaw support that he has
sustained a constitutional violation. At best, Snavely analogizes the possible denial of
parole in 2017 to the loss of earned good time credits which the Kansas Supreme Court
has held implicates an inmate's protected liberty interest. See Kesterson v. State, 276 Kan.
732, Syl. ¶ 2, 79 P.3d 1074 (2003). We find this analogy to be inexact.

Unlike the actual loss of earned good time credits, at the present time Snavely has
not lost any liberty interest. On the contrary, this case is more analogous to a situation
where an inmate loses future good time credits not yet earned. In that circumstance, our
Supreme Court has held that a prisoner has no protected liberty interest. See In re Habeas
Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 8, 24 P.3d 128 (2001). Moreover,
disciplinary segregation, similar to a 7-day restriction, does not rise to the level of a
constitutionally protected interest. See Murphy v. Nelson, 260 Kan. 589, Syl. ¶ 9, 921 P.
2d 1225 (1996).

In conclusion, parole is a privilege and a matter of grace exercised by KPRB.
Walling v. Francisco, 22 Kan. App. 2d 588, 589, 920 P.2d 466 (1996). Even if Snavely
had been able to remain free of disciplinary convictions, his parole status is still uncertain
and unknowable. Snavely has not shown that the speculative possibility of obtaining
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parole in the future constitutes a protected liberty interest today. For this reason, we hold
the district court did not err in summarily dismissing Snavely's K.S.A. 2015 Supp. 60-
1501 petition.

Affirmed.