Toney v. Heimgartner

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NOT DESIGNATED FOR PUBLICATION

No. 117,716

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MICHAEL TONEY,
Appellant,

v.

JAMES HEIMGARTNER,
Appellee.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed May 4, 2018.
Affirmed.

Chris J. Pate, of Pate & Paugh, LLC, of Wichita, for appellant.

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

Before BRUNS, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: Michael Toney appeals from the district court's decision summarily
dismissing his petition for writ of habeas corpus under K.S.A. 2016 Supp. 60-1501. The
district court found Toney's K.S.A. 60-1501 petition to be untimely filed. However, the
district court went on to discuss the merits and found "that Toney has failed to
demonstrate either shocking and intolerable conduct or continuing mistreatment of a
constitutional nature." Based on our review of the record on appeal, we agree with the
district court that Toney has not alleged in his petition shocking and intolerable conduct
or continuing mistreatment of a constitutional stature. Thus, we affirm the district court's
summary dismissal of Toney's K.S.A. 60-1501 petition.
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FACTS

At all times relevant to this appeal, Toney was an inmate at the El Dorado
Correctional Facility (EDCF). On June 14, 2016, a corrections officer filed a disciplinary
report against Toney in case 16-06-116. The report alleged that at approximately 5 a.m.
on June 13, 2016, Toney violated K.A.R. 44-12-304 by disobeying an order and K.A.R.
44-12-323 by committing an assault. The following day, the corrections officer filed a
second disciplinary report against Toney in case 16-06-117 alleging that at approximately
6:30 a.m. on June 13, 2016, Toney violated K.A.R. 44-12-306 by threatening or
intimidating another person.

A hearing officer considered both disciplinary reports at a hearing held on June 16,
2016. At the hearing in case 16-06-116, Toney answered the hearing officer's questions.
Moreover, three EDCF officers testified, and the hearing officer gave Toney the
opportunity to ask them questions. After reviewing the disciplinary report and listening to
the testimony of the witnesses, the hearing officer found Toney "guilty of disobeying
orders and assault as he did refuse to pull his hand inside his cell when ordered . . . [and]
did attempt to reach out at [an] officer . . . ."

The hearing officer then considered case 16-06-117. Again, Toney answered
questions from the hearing officer, and three EDCF officers testified. Once more, the
hearing officer allowed Toney to ask questions of the witnesses. After reviewing the
disciplinary report and listening to the testimony of the witnesses, the hearing officer
found Toney "guilty of threatening" a corrections officer "after having had an earlier
incident involving a use of force on him with the RO . . . ."

On June 27, 2016, Toney appealed both disciplinary cases to the Secretary of
Corrections. Subsequently, the Secretary of Corrections affirmed the hearing officer's
decisions in both disciplinary cases. On July 8, 2016, the Secretary found that in case 16-
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06-116 there had been substantial compliance with departmental and facility standards
and procedures. Moreover, the Secretary found that the hearing officer based his decision
on some evidence. Likewise, on July 12, 2016, the Secretary found that in case 16-06-117
that there had been substantial compliance with department and facility standards and
procedures. Further, the Secretary found that the hearing officer based his decision on
some evidence. Toney received a disposition of disciplinary appeal for case 16-06-116 on
July 19, 2016, and for case 116-06-117 on July 21, 2016.

On September 9, 2016, Toney's K.S.A. 60-1501 petition was filed in district court.
Although the K.S.A. 60-1501 petition did not contain a certificate of service, it included a
notarized verification and poverty affidavit dated August 15, 2016. Toney also filed a
cover letter dated August 16, 2016, with the petition. Also on September 9, 2016, Toney
filed a motion for appointment of counsel. Attached to the motion was a poverty affidavit
and supporting documents respectively dated August 8 and 15, 2016.

On October 11, 2016, Toney filed a motion for leave to file a supplemental K.S.A.
60-1501 petition, which attempted to add a claim relating to a third disciplinary action.
According to the documents attached to the proposed supplemental petition, a corrections
officer charged Toney in case 16-08-008 with violating K.A.R. 44-12-304 on August 2,
2016. Specifically, the corrections officer charged him with failing to follow the directive
to allow the corrections officer to inspect Toney's mouth after a medication pass.
Although the hearing officer notified Toney of the disciplinary hearing, he refused to
participate. At the hearing held on August 5, 2016, the hearing officer found Toney
"guilty of disobeying . . . a lawful order [to] show the [the reporting officer] the inside of
his mouth after taking medication . . . ." Toney appealed, and the Secretary of Corrections
upheld the hearing officer's decision on September 6, 2016.

On December 28, 2016, the district court filed a journal entry of summary
dismissal. The district court determined that it should summarily dismiss the K.S.A. 60-
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1501 action because Toney untimely filed the petition. In addition, the district court
found that Toney had "failed to demonstrate either shocking and intolerable conduct or
continuing mistreatment of a constitutional nature." According to the district court, the
record showed that the hearing officer did not deny Toney the right to testify. Moreover,
the district court determined that the record showed that the hearing officer conducted a
proper hearing and gave sufficient reasons for his decision to find Toney guilty.

In addition, the district court noted that Toney had sought leave to amend his
K.S.A. 60-1501 petition to include a claim relating to a third disciplinary action.
However, the district court determined that it did not need to rule on this motion since
Toney had untimely filed the original petition. Nevertheless, the district court went on to
conclude that the record relating to the additional disciplinary conviction was sufficient to
uphold Toney's conviction in that action as well. On January 12, 2017, Toney timely
appealed to this court.

ANALYSIS

To avoid a summary dismissal, a K.S.A. 60-1501 petition must allege "shocking
and intolerable conduct or continuing mistreatment of a constitutional stature." Johnson
v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). "[I]f, on the face of the petition, it can
be established that petitioner 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," then summary dismissal is proper. Johnson, 289
Kan. at 648-49; see K.S.A. 2017 Supp. 60-1503(a). On appeal, we exercise unlimited
review of a summary dismissal. Johnson, 289 Kan. at 649; see Swafford v. McKune, 46
Kan. App. 2d 325, 328, 263 P.3d 791 (2011).

On appeal, Toney asserts that his right to procedural due process was violated at
his disciplinary hearings. In order to establish a claim for a violation of due process in a
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habeas corpus proceeding, an inmate must establish a deprivation of a recognized liberty
or property interest. Hogue v. Bruce, 279 Kan. 848, 850-51, 113 P.3d 234 (2005);
Murphy v. Nelson, 260 Kan. 589, 598, 921 P.2d 1225 (1996). A disciplinary sanction
within a prison does not implicate due process rights. However, the extraction of even a
small fine from an inmate's prison account implicates the Due Process Clause. Anderson
v. McKune, 23 Kan. App. 2d 803, 807, 937 P.2d 16 (1997) (citing Longmire v. Guste, 921
F.2d 620, 623-24 [5th Cir. 1991]). Likewise, good time credits already earned are a
protected liberty interest. Kesterson v. State, 276 Kan. 732, Syl. ¶ 2, 79 P.3d 1074 (2003).

A review of the record does not reveal what penalties Toney received for being
found guilty in the three disciplinary cases. As such, we could affirm the district court's
summary dismissal of Toney's petition on the ground that he has not shown that his due
process rights were implicated. However, Toney alleges in his K.S.A. 60-1501 petition
that there were "$40.00 worth of fines" imposed. He also alleges that some of his good
time credits were taken away from him. Thus, for the purposes of this appeal, we will
accept Toney's allegations as true and proceed to the merits.

In the context of a prison disciplinary proceeding, an inmate's procedural due
process rights are generally limited to written notice of the charges, an impartial hearing,
an opportunity to call witnesses, an opportunity to present documentary evidence, and a
written statement from the hearing officer as to the findings and reasons for the decision.
In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627-28, 24 P.3d 128
(2001); Swafford, 46 Kan. App. 2d at 329. Moreover, 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."
Superintendent v. Hill, 472 U.S. 445, 454-55, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985).
Accordingly, in the context of prison disciplinary proceedings, due process demands only
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that some evidence in the record support a hearing officer's decision. 472 U.S. at 455; see
Sammons v. Simmons, 267 Kan. 155, 158-59, 976 P.2d 505 (1999).

Toney contends that he did not have an opportunity to testify at his disciplinary
hearings. We find that the record does not support this contention. Instead, a review of
the record reveals that in the two disciplinary cases identified in his original K.S.A. 60-
1501 petition, Toney answered the questions the hearing officer asked of him. Moreover,
the record reveals that he was able to explain his side of the story to the hearing officer.
In addition, a review of the record from the third disciplinary case reveals that Toney
refused to participate in the hearing. Thus, we conclude that the district court properly
found that the hearing officer did not deny Toney the opportunity to testify or to defend
himself otherwise in the claims asserted against him.

Toney also contends that the hearing officer did not conduct the hearing in
accordance with EDCF rules and policies. Once again, he argues that he was not allowed
to testify. Furthermore, he argues that he did not receive adequate written findings from
the hearing officer. It is important to note that Toney does not cite any specific rule or
policy that the EDCF staff allegedly violated. Likewise, Toney attached the written
rulings from the disciplinary actions to his K.S.A. 60-1501 petitions so it is obvious that
he received them at some point in time. Although they are not extensive, we find that
they are adequate to explain the hearing officer's decision in each case.

Toney next contends that his due process rights were violated because the hearing
officer was biased. In support of this contention, Toney argues that he had named the
hearing officer as a defendant in a pending civil action. However, Toney candidly admits
that he did not allege this in his K.S.A. 60-1501 petition. Nevertheless, even if we assume
that Toney properly presented the issue and accept the allegation that Toney had filed a
lawsuit naming the hearing officer as a defendant, we do not know in what capacity he
sued the hearing officer, nor do we know the nature of the allegations against him. We
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note that the Kansas Supreme Court has found that judges should disqualify themselves
when the circumstances and facts of a case "'create reasonable doubt concerning the
judge's impartiality, not in the mind of the judge himself, or even, necessarily, in the
mind of the litigant filing the motion, but rather in the mind of a reasonable person with
knowledge of all the circumstances.'" State v. Walker, 283 Kan. 587, 608, 153 P.3d 1257
(2007) (quoting State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 [1984]). "The term 'bias'
refers to the judge's mental attitude toward a party in the lawsuit. Bias and prejudice exist
if a judge harbors a 'hostile feeling or spirit of ill will against one of the litigants, or
undue friendship or favoritism toward one.' [Citations omitted.]" 283 Kan. at 587-88.

Here, Toney has not alleged that the hearing officer harbored hostility or ill will
against him. He merely alleges that he had named the hearing officer in a lawsuit. Toney
offers no legal support for the conclusion that filing a lawsuit against someone makes that
person automatically biased against the plaintiff. Moreover, we find this case to be
distinguishable from Deere v. Heimgartner, No. 113,944, 2015 WL 8590897, at *2-3
(Kan. App. 2015) (unpublished opinion). In Deere, the petitioner alleged that the hearing
officer and the key witness against the petitioner had talked about the substance of the
case before the hearing, and when the petitioner asked the witness for further details
regarding the discussion, the hearing officer told the witness not to answer. Thus, we do
not find Toney's generic allegation to be sufficient to show bias.

Finally, Toney contends that the district court erred in dismissing the claim that he
desired to make in an amended K.S.A. 60-1501 petition. A review of the record reveals
that the disciplinary report was served on Toney. As the district court also pointed out,
the record reveals that Toney was aware of the rules and procedures followed for
disciplinary cases.

In summary, we agree with the district court that—as a matter of law—no cause
for granting a writ exists. Specifically, we find that Toney has not alleged shocking and
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intolerable conduct or continuing mistreatment of a constitutional stature. We, therefore,
conclude that the district court did not err in summarily dismissing Toney's K.S.A. 60-
1501 petition. In light of this conclusion, we do not find it necessary to address the issue
of timeliness of the filing of the K.S.A. 60-1501 petition.

Affirmed.