Boydston v. Schnurr

• Decision Date: 07 June 2013
• Docket Number: No. 108,829.,108,829.
• Parties: Sean BOYDSTON, Appellant, v. Dan SCHNURR, et al., Appellees.
• Court: Kansas Court of Appeals

302 P.3d 45

Sean BOYDSTON, Appellant,

v.Dan SCHNURR, et al., Appellees.

No. 108,829.

Court of Appeals of Kansas.

June 7, 2013.

Appeal from Ellsworth District Court; Ron Svaty, Judge.

Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellant.

Robert E. Wasinger, of Kansas Department of Corrections, for appellee.

Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.

MEMORANDUM OPINION

PER CURIAM.

Sean Boydston appeals the summary dismissal of his petition for writ of habeas corpus filed pursuant to K.SA. 60–1501. He was disciplined pursuant to K.A.R. 44–12–401 for failing to follow a work directive. Boydston argues he did not clean up the debris as ordered because it was a bird nest protected by federal law. He also claims several procedural errors by the hearing officer violated his right to due process. We affirm.

Boydston was an inmate at Ellsworth Correction Facility at the time of his violation. The disciplinary report alleges Boydston violated regulations 44–12–304 (Disobeying Orders, Class I) and 44–12–401(b) (Work Performance, Class II) on June 14, 2012. The disciplinary report provides the following factual basis as witnessed by Corrections Officer II Ballard:

“On 06/14/2012 at approx. 0630 I had checked the lights on the East exterior wall for debris. At approx. 0830 Major Murrell observed birds dragging grass and straw up onto the western most light on the South–East exterior wall of building 1. At approx. 1045 I advised I/M Boydston # 74231 that he was to take down the debris. I/M Boydston did not complete this task on that day.

“On 06/15/2012 Major Murrell was in the entry area when I addressed I/M Boydston again. At that time I/M Boydston stated that he did not take down the debris due to federal law protecting bird nests. At this time Major Murrell advised I/M Boydston that when he was given the directive to remove the debris, it was not a nest.

“Due to the fact that I/M Boydston did not promptly obey the directive given by myself on 06/14/2012 to remove the debris he is in direct violation of 44–12–304 disobeying orders. In addition due to I/M Boydston being at work during this violation and he did not perform work assigned to him, he is also in direct violation of 44–12–401 work performance (b).”

A disciplinary hearing officer found Boydston guilty of violating the work performance regulation, K.A.R. 44–12–401(b), for failure to perform work duties, but dismissed the disobeying order charge. Boydston called two witnesses on his behalf, but the hearing officer denied his request to call eight additional witnesses. The hearing officer found that Boydston's violation was a work performance issue and it was his duty to follow work directives. The hearing officer held:

“Found guilty due to the written report and the testimonies of all parties concerned. In his testimony inmate Boydston states that he believed that removing this debris constituted a violation of federal law. It has been established through the KDWP that Finches are not a migratory bird and therefore not protected under federal law. It was confirmed by COH Ballard and Major Murrell the materials in question had not been fashioned into a complete nest and therefore was not subject to protection under this law. In her testimony COII Ballard testified that she gave inmate Boydston a directive to remove the debris from the area, inmate Boydston chose to ignore that directive. This hearing officer believes that the preponderance of the evidence makes it more likely true than not that inmate Boydston put himself in violation of 44–l2–401b, work performance.”

Boydston was sanctioned to 21 days restriction and a $10 fine. The Designee of the Secretary of Corrections affirmed Boydston's conviction and sanction.

Boydston's appeal to district court was summarily dismissed by the court for failing to state facts entitling him to relief. On appeal, Boydston argues the district court erred in dismissing his 60–1501 petition for failure to state a claim. He argues if he had followed the work directive, he would have been in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C.A. §§ 703–711 (2006) and the corresponding Kansas law at K.S.A. 32–1008. Boydston apparently had worked as a chimney sweep for a year where he learned something about the MBTA. He contends the hearing officer completely misunderstood the federal law and that an inmate has a right and duty to disobey any order from a correctional officer which would result in the inmate breaking state or federal law. We note evidence was presented on both sides concerning the MBTA. The finding that the MBTA was not involved was supported by “some evidence.”

Boydston also raised procedural due process violations in the disciplinary hearing process alleging the hearing officer was not acting in an impartial manner by considering outside evidence and that he was not allowed to present eight witnesses or relevant documents in his defense at the disciplinary hearing.

To determine whether a 60–1501 petition states a claim for relief, the district court examines the allegations in the petition and the contents of any attachments to determine if the petition alleges “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). In reviewing a district court's summary dismissal for failure to state a claim, an appellate court must accept as true the allegations in the petition and determine if the facts alleged and their reasonable inferences state a claim for relief. See 285 Kan. at 679.

It does not appear that Boydston is challenging the facts surrounding his disciplinary violation. Instead, he is arguing he had a right to not perform the work request because of the MBTA. In reviewing a 60–1501 petition, we are required to uphold the prison officials' disciplinary action if there was “some evidence” to support the hearing officer's determination that the petitioner committed a violation. Sammons v. Simmons, 267 Kan. 155, 158, 976 P.2d 505 (1999) (citing Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 [1985] ). The violation in this case was failure to perform requested work.

“ ‘[T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced ...” [Citation omitted.] 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. [Citations omitted.]’ (Emphasis added.) 472 U.S. at 455–56.” Anderson v. McKune, 23 Kan.App.2d 803, 807–08, 937 P.2d 16 (1997).

We find there was sufficient evidence to support the hearing officer's decision. Officer Ballard testified there was no debris around the light at 6:30 a.m. on June 14, 2012. However, at 8:30 a.m., Major Murrell noticed 20–30 pieces of straw around the light and he instructed Officer Ballard to have an inmate clean up the debris. At approximately 10:45 a.m., Officer Ballard instructed Boydston, who was working at the time, that he was to take down the debris. Boydston did not remove the debris from around the light. Boydston failed to perform worked assigned to him and he was in violation of the prison work performance regulations, K.A.R. 44–12–401(b) (“Each inmate shall perform work assigned in the manner prescribed and according to the directives of the inmate's supervisor or other authorized official.”). There is evidence in...