342 P.3d 1 (Kan.App. 2015), 112,132, Robertson v. Call
| Judge | Before ATCHESON, |
| Parties | JOSHUA JAMES ROBERTSON, Appellant, v. DALE CALL, et al., Appellees |
| Date | 16 January 2015 |
| Docket Number | 112,132 |
| Court | Kansas Court of Appeals |
| Citation | 342 P.3d 1 |
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Editorial Note:
This decision has been designated as "not for publication" in the Pacific Reporter, it is published in table format. See KS R S AND A CTS RULE 7.04
Appeal from Butler District Court; JOHN E. SANDERS, judge.
OPINION
Joshua James Robertson appeals the trial court's summary dismissal of his tort claims against prison personnel and his petition for habeas corpus relief under K.S.A. 60-1501. We affirm the dismissal of the tort claims because an action under K.S.A. 60-1501 is not a proper vehicle for the advancement of a damage claim with a jury demand, but that dismissal is modified to be without prejudice. We reverse the district court's summary dismissal of Robertson's First Amendment violation claims under the Free Exercise and Establishment Clauses, and we remand those claims to the district court for appointment of counsel and an evidentiary hearing.
Factual and Procedural Background
Robertson is an inmate in the custody of the Secretary of the Kansas Department of Corrections (KDOC). For both disciplinary and protective custody reasons he was placed in administrative segregation at the El Dorado Correctional Facility (EDCF) on May 6, 2013.
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He does not challenge that placement in this action. In October 2013, Robertson officially changed his religious affiliation to Messianic Jew. He added Rabbi Richard Segal to his visitation list, which addition EDCF authorities promptly approved. He requested that he be permitted face-to-face visits with his Rabbi. Because Robertson was housed in administrative segregation, prison authorities only permitted him to visit his Rabbi via video booth link, ostensibly under the authority of written EDCF Rule 16-107. The request for a face-to-face visitation with Rabbi Segal was denied at the unit team level.
Robertson then filed a grievance demanding those face-to-face visits and $500,000 for the damage prison personnel were doing to his religious rights and his resulting emotional distress. Gary Wilson, EDCF's classification administrator, denied the visitation claim citing " security concerns." Wilson also pointed out that Robertson could have face-to-face visits with staff chaplains at EDCF. Otherwise though, to visit his non-staff personal Rabbi, Wilson stated that Robertson was required to follow the normal visitation process. On January 17, 2014, the warden upheld the grievance denial, as
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did the Secretary of Corrections' designee on January 27, 2014.
On February 21, 2014, Robertson filed his pro se 23-page petition for a writ of habeas corpus seeking to enjoin EDCF personnel from preventing face-to-face visits with Rabbi Segal. He also included damage claims under the Kansas Tort Claims Act (KTCA) and a jury demand. His petition was accompanied by extensive documentation of rules, regulations, orders, and records from his administrative grievance process. He contended that KDOC and EDCF officials and personnel violated their own duly promulgated rules (K.A.R. 44-7-104 and EDCF General Order 16-107) when they " intentionally, willful [ sic ], wanton [ sic ], and maliciously" refused him face-to-face visits with Rabbi Segal but would permit such visits with prison staff clergy. He argued that, under K.A.R. 44-7-104(b), he was entitled to engage in secret penitential communication with his Rabbi in a " place" EDCF was required by the regulation to provide for private consultation. Robertson asserted that confidentiality could be thwarted if prison personnel violated the prohibition on audio monitoring of video booth contact.
Robertson's pro se pleading also claimed a violation of his rights under the Free Exercise Clause of the First Amendment in that
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the authorities " deprived him of his religious freedom of being provided a place for private consultation with his Rabbi. . . . " He alleged that the Segregation Programs Room would be available to provide a safe environment for face-to-face visits, stating that " [t]he Segregation Programs Room is a Room which has a cage to confine the inmate and allow the inmate to use a desk while privately communicating with their attorney who is protected from the inmate by use of the cage and this room has bullet-proof windows to provide visual monitoring." He then asked why, since segregated inmates were allowed to meet with their attorneys in that room, he could not meet in that same room with his Rabbi. He further stated that he is a penitent who recognizes the existence and authority of God and seeks from his Rabbi private advice and assistance in " determining and discharging [his] moral obligations and in obtaining God's mercy and forgiveness for past culpable conduct."
He also specifically claimed that KDOC officials and personnel violated the Establishment Clause of the First Amendment and § 7 of the Kansas Constitution Bill of Rights by offering face-to-face visits with staff clergy, who were not of his Messianic Jewish faith, while prohibiting such visits with Rabbi Segal.
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The named respondents filed their Answer and Motion to Dismiss. They contended that Robertson was misreading K.A.R. 44-7-104. That regulation, in subsection (a)(1), specifically permits a warden to prohibit physical contact between inmates and visitors. In subsection (b) it provides that visits with clergy (and attorneys) cannot be monitored for sound. Next, they contended that Robertson was misreading EDCF General Order 16-107. They pointed out that section I.C.1. of the order limits visitation for inmates in the Segregation Unit to visitation by video link and, under section II. A. 2., confirms that visits with attorneys and clergy are private and can only be monitored visually (for safety reasons) but not by audio. They argued, with citation to authority, that they had not violated any of Robertson's rights, constitutional or statutory or regulatory.
Finally, the respondents argued that they had committed no tort. They then submitted that, even if they had, they would be immune under K.S.A. 2013 Supp. 75-6104 because they were simply enforcing rules and regulations as a part of their jobs.
Each party acknowledged that the following rules and regulations were at issue. K.A.R. 44-7-104 concerns inmate visitation and provides, in relevant parts, as follows:
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" (a) Orders shall be promulgated by the warden to govern inmate communication with family, friends, relatives, and others through visits to the facility. Further elaboration of this regulation through the internal management policies and procedures shall be made by the secretary, particularly with respect to establishing a system of identifying a primary visitor for each inmate. The following procedures shall be observed by the facility in the administration of visits.
" (1) A suitable area and reasonable space within the facility shall be provided for inmate visitation. All visits shall be held in this area, except when authorization is granted by the warden to visit an inmate elsewhere. For the reasons of security and order in the facility, a visit may be directed by the warden to be allowed under circumstances in which physical contact between the inmate and visitor is not permitted. All visits shall be subject to visual and sound monitoring of conversations and actions during the visit, except any visit with an attorney or clergy member, or any other visits with persons having a statutory right of privileged communication as specified in subsection (b). " (b) A place shall be provided for private consultation Page 7
by attorneys, clergy members, and other persons having a statutory right of privileged communication, with the exception of spouses, to permit confidential conversation. Only those measures necessary to preserve security shall be permitted to interfere with the consultation. Sound monitoring shall not be conducted. Visual monitoring shall be permitted only if necessary to maintain security."
Pursuant to the above authority, the warden at EDCF generated General Order 16-107 concerning visitation, which provides in relevant part as follows:
I.C.1. " Inmates in administrative and disciplinary segregation shall visit using the video visitation booths in one-hour time blocks."
II.A.2. " Attorneys, clergy, and other persons having a statutory right of privileged communication, with the exception of spouses, shall be provided a space for private consultation. Security measures shall be permitted to include visual monitoring by camera or in person. Sound monitoring shall not be conducted."
Robertson filed his response to the answer and motion to dismiss on May 13, 2014. After reiterating his claims, he challenged the State's contention that he was a security risk...
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