Walling v. Spradling

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NOT DESIGNATED FOR PUBLICATION

No. 114,341

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TERRY F. WALLING,
Appellant,

v.

SCOTT SPRADLING, et al.,
Appellees.


MEMORANDUM OPINION

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

Michael G. Highland, of Bonner Springs, for appellant.

Sherri Price, special assistant attorney general, Lansing Correctional Facility, for appellee.

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

Per Curiam: Terry F. Walling appeals the summary dismissal of his petition for
habeas corpus relief under K.S.A. 2015 Supp. 60-1501 for failure to state a claim. Since
we find, as a matter of law, that Walling did not have a protected liberty interest, we
affirm the district court's decision.

FACTS

The pertinent facts are not in dispute. As an inmate in the custody of the Kansas
Department of Corrections (KDOC), Walling filed several requests to change his security
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status from high-medium to minimum custody by exception, all of which were denied by
various KDOC officials. After exhausting his available administrative remedies, Walling
petitioned the district court for habeas relief under K.S.A. 2015 Supp. 60-1501.

This was not the first time Walling challenged his custody classification in court.
See Walling v. Simmons, No. CIV. A. 94-3398-GTV, 1998 WL 229541, at *3 (D. Kan.
1998) (unpublished opinion) (affirming summary judgment for defendants on Walling's
challenge to change in his classification from minimum custody to medium custody in
federal civil rights action).

In this case, the district court issued a writ, appointed counsel, ordered the KDOC
officials Walling named as defendants to file an answer, and set the matter for hearing.
Walling purported to raise several claims in his pro se petition and subsequent pleadings.
His appointed counsel, however, narrowed his claim to challenge the denial of his
requests for minimum custody by exception based on allegations of "shocking and
intolerable conduct." After filing their joint answer, the KDOC defendants jointly moved
to dismiss the case for failure to state a claim. See K.S.A. 2015 Supp. 60-1505(a)
(allowing for summary proceeding to determine cause and dissolve writ where motion,
files, and records of case conclusively show inmate is entitled to no relief).

Following a hearing, at which Walling appeared with counsel, the district court
granted the defendants' motion and dismissed the case. This is Walling's timely appeal
from that decision.

ANALYSIS

In his sole issue on appeal, Walling contends he stated a proper claim for habeas
relief based on shocking and intolerable misconduct that resulted in the denial of his
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requests for minimum custody by exception. The KDOC disagrees and urges this court to
affirm.

Kansas law clearly prevents Walling from challenging his security custody status
designated by the KDOC. See K.S.A. 2015 Supp. 75-5210(b) ("The security custody
status designated by the department shall not be subject to judicial review."). But we have
found no case that has applied this language to preclude a habeas challenge under K.S.A.
2015 Supp. 60-1501 to allegedly improper conduct by prison officials that informed the
designation.

Turning to the merits, we must uphold the summary dismissal of Walling's K.S.A.
60-1501 petition "if, on the face of the petition, it can be established that petitioner is not
entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as
those recited in a court record, it appears, as a matter of law, no cause for granting a writ
exists." Johnson v. State, 289 Kan. 642, 648-49, 215 P.3d 575 (2009). When, as here, we
have the same access to a K.S.A. 2015 Supp. 60-1501 petition, records, and files as the
district court, we conduct a de novo review, accepting as true Walling's factual
allegations. See 289 Kan. at 649 (de novo review); Hogue v. Bruce, 279 Kan. 848, 850,
113 P.3d 234 (2005) (appellate court accepts facts alleged as true in reviewing summary
dismissal of K.S.A. 2015 Supp. 60-1501 petition).

Our Supreme Court has held that to state a claim for relief under K.S.A. 2015
Supp. 60-1501, a petitioner must allege "shocking and intolerable conduct or continuing
mistreatment of a constitutional stature." Johnson, 289 Kan. at 648 (citing Bankes v.
Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060 [1998]). The
parties dispute whether Walling's allegations state a claim under either alternative.

Notably, Walling concedes that this court has held an inmate has no protected
liberty interest in his or her custody classification. See Hundley v. McKune, 23 Kan. App.
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2d 187, 192, 929 P.2d 1382 (1996) (holding inmate's attempts to obtain minimum
custody by exception did not "raise due process concerns"); Lile v. Simmons, 23 Kan.
App. 2d 1, 3, 929 P.2d 171 (1996) (holding inmate has no due process liberty interest in
minimum security classification in affirming summary dismissal of K.S.A. 60-1501
petition challenging denial of minimum security classification based on good behavior).
What Walling fails to appreciate, however, is that this lack of protected liberty interest is
fatal to his claim under either alternative for stating a claim for relief under K.S.A. 2015
Supp. 60-1501 discussed in Johnson.

Simply put, Walling misreads Johnson to suggest that as long as he alleged
shocking and intolerable conduct by the KDOC defendants, it does not matter that he has
no protected liberty interest in his custody classification. As the Johnson court pointed
out, however:

"The first alternative for stating a claim under K.S.A. 60-1501—establishing
shocking and intolerable conduct—derives from the Fourteenth Amendment to the
United States Constitution, which prohibits the states from depriving persons of 'life,
liberty, or property, without due process of law.' U.S. Const. amend. XIV, § 1; see
County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S. Ct. 1708, 140 L. Ed. 2d 1043
(1998); Levier v. State, 209 Kan. 442, 451, 497 P.2d 265 (1972)." Johnson, 289 Kan. at
649.

In the context of an inmate's claim involving the deprivation of due process, the
United States Supreme Court has held:

"States may under certain circumstances create liberty interests which are protected by
the Due Process Clause. [Citation omitted.] But these interests will be generally limited
to freedom from restraint which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of its own force, [citations
omitted], nonetheless imposes atypical and significant hardship on the inmate in relation
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to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.
Ct. 2293, 132 L. Ed. 2d 418 (1995).

As other courts have noted, "'[v]ery few conditions of prison life are "shocking" enough
to violate a prisoner's right to substantive due process.'" Tavares v. Amato, 954 F. Supp.
2d 79, 98 (N.D.N.Y. 2013) (citing Sandin's examples of transfer to mental hospital and
involuntary administration of psychotropic drugs).

A close reading of Hundley and Lile demonstrates that both decisions are based on
the conclusion that the classification of an inmate's custody status does not impose
atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life. Consequently, an inmate's challenge to his or her custody classification under
K.S.A. 2015 Supp. 60-1501 fails as a matter of law. See Hundley, 23 Kan. App. 2d at
192; Lile, 23 Kan. App. 2d at 3. The same reasoning requires us to conclude here that
Walling has failed to state a claim for relief under K.S.A. 2015 Supp. 60-1501.

To summarize, where no protected liberty interest is involved, there is no
requirement of constitutional due process. Amos v. Nelson, 260 Kan. 652, 658-59, 923
P.2d 1014 (1996). Walling provides no reason for this court to stray from its prior
holdings that an inmate has no protected liberty interest in his or her custody
classification; so there is no requirement of constitutional due process. Because, as a
matter of law, no cause for granting the writ Walling sought in this case exists, we hold
the district court did not err in summarily denying Walling's K.S.A. 2015 Supp. 60-1501
petition.

Affirmed.