Gray v. Nelson
| Decision Date | 14 April 1995 |
| Docket Number | No. 72121,72121 |
| Citation | 20 Kan.App.2d 900,893 P.2d 842 |
| Parties | Kevin E. GRAY, Appellant, v. Michael A. NELSON, Warden, M.K. Barnes, Lieutenant of I & I, and David Suttle, Unit Team Manager, El Dorado Correctional Facility, Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The maintenance and administration of penal institutions are executive functions and, before courts will interfere, the institutional treatment must be of such a nature as to clearly infringe upon constitutional rights, be of such character or consequence as to shock the general conscience, or be intolerable to fundamental fairness. To avoid summary dismissal of a K.S.A. 60-1501 petition, allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional nature.
2. Kansas administrative regulations recognize an inmate's liberty interest in not being placed arbitrarily in administrative segregation by using mandatory language and providing procedures for review which, if exercised, provide sufficient due process.
3. Based upon the facts of the present case, the appellant failed to allege treatment in violation of the minimum due process requirements, continuing mistreatment of a constitutional nature, or conduct that was shocking or intolerable. Therefore, the district court did not err in summarily dismissing appellant's habeas corpus petition.
Steven C. Sherwood, of Legal Services for Prisoners, Inc., of El Dorado, for appellant.
Lou Allen and Julie L. Riddle, Special Asst. Attys. Gen., for appellee.
Before BRAZIL, P.J., GERNON, J., and DAVID J. KING, District Judge, assigned.
Kevin E. Gray appeals the trial court's dismissal of his K.S.A. 60-1501 petition in which he alleged a violation of his constitutional right to due process.
Gray is an inmate at the El Dorado Correctional Facility. Gray was placed in administrative segregation, and, 13 minutes later, an administrative segregation report (ASR) was filed, stating that Gray was placed in administrative segregation "pending the results of an investigation." The ASR stated that Gray was placed in administrative segregation before he received a report as to the basis for his segregation in order to "prevent any disruptive behavior" and that a pre-segregation report hearing had been held. All of the above events occurred within a three-hour period.
Kansas law empowers the Department of Corrections (DOC) to promulgate regulations relating to those in the custody of the DOC. Among the regulations in effect at the time of Gray's incarceration were regulations covering the physical control of inmates within institutions run by the DOC. Such physical control, termed segregation, is divided into two types: administrative and disciplinary.
Disciplinary segregation is used as punishment. K.A.R. 44-14-201; see K.S.A. 1994 Supp. 75-5252.
Administrative segregation is used where, in the view of the corrections officials, segregation is necessary for some reason other than punishment: for example, to prevent communication between prisoners; to prevent the intimidation of a prisoner who is a witness or an accuser; to prevent any further disruption or danger to any inmate; for prehearing detention on a disciplinary matter; to prevent the spread of disease; to separate those who are suicidal or have a history of physical or sexual attacks or mental problems; to separate a potentially dangerous cellmate; to prevent escape; or when an inmate engages in an activity which presents a disruption, creates a security risk, or is a danger to the inmate or others. K.A.R. 44-14-302.
In Gray's case, the following facts were used to support his continuing segregation after a second ASR was filed two days after he was placed in administrative segregation:
"
Gray remained in administrative segregation from January 6, 1993, until February 2, 1994. During that period of time, the Administrative Segregation Review Board (ASRB) reviewed Gray's status and issued reports 21 times. The ASRB report shows that Gray appeared before the ASRB on January 7, 1993, and at all of the reviews from March 11 through November 12, 1993. Throughout this period of time, Gray's status remained "other security risk" pursuant to K.A.R. 44-14-302(g).
Gray filed a habeas corpus petition after exhausting his administrative remedies. The district court appointed counsel and issued a show cause order in April 1994. The appellees filed a motion to dismiss pursuant to K.S.A. 60-212(b)(6).
At the show cause hearing, the district court found that "as to whether minimal due process requirements were adhered to, ... this matter was investigated under pending investigation under sections ... (a) (c) (d) and (f), whereby the inmate can be placed into administrative segregation on an emergency finding"; that "within 48 hours thereto of the incident a pre-segregation hearing was held whereby reason for confinement was brought before the inmate"; and that "the correctional facility was in compliance thereto." Finding that no evidentiary hearing was necessary, the district court granted the motion to dismiss. The journal entry merely states that the court found that all procedures were followed by the defendants and that Gray's due process rights were not violated. Gray appeals.
Two questions are raised by Gray. The first concerns the initial placement of Gray in administrative segregation and whether he had a liberty interest which is protected by constitutional due process. The other question involves the dismissal of his petition without an evidentiary hearing.
Framed more specifically, the first question is whether an inmate has a liberty interest in remaining in the general prison population.
Gray takes issue with his initial placement in administrative segregation. Gray contends that he was placed in administrative segregation without any meaningful pre-segregation hearing, without sufficient notice, and without sufficient cause under the existing regulations. Although Gray only incidentally mentions the constitutional issue, the due process issue is the gravamen of his argument and, therefore, must be addressed.
This court, in Swisher v. Hamilton, 12 Kan.App.2d 183, 184-85, 740 P.2d 95, rev. denied 242 Kan. 905 (1987), stated:
This issue was considered by the United States Supreme Court in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Helms had been placed in administrative segregation after a prison riot, pending an investigation into his role in the riot. Helms claimed that his confinement in administrative segregation violated his constitutional rights to due process. The United States Court of Appeals for the Third Circuit held that Pennsylvania state law had created a protected liberty interest requiring minimal due process. The United States Supreme Court reversed, agreeing that the liberty interest had been created but finding that the process received by Helms was sufficient to meet due process standards.
The Hewitt Court noted that liberty interests requiring protection under the Due Process Clause may arise from the Due Process Clause itself or from state laws. 459 U.S. at 466, 103 S.Ct. at 868. " '[A]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.' " 459 U.S. at 468, 103 S.Ct. at 869 (quoting Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 [1976]. Under this standard, the Court held that transferring an inmate to a more restrictive setting within the prison did not give rise to an interest independently protected by the Due Process Clause. 459 U.S. at 468, 103 S.Ct. at 869-870.
However, the Court did find that the State had created a protected liberty interest. Because the state regulations had gone beyond simple procedural guidelines and used language of an "unmistakably mandatory character, requiring that certain procedures 'shall,' 'will,' or 'must' be employed ... and that administrative segregation will not occur absent...
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...concerned with administrative segregation in Kansas, two panels of the Court of Appeals reached opposite results. In Gray v. Nelson, 20 Kan.App.2d 900, 893 P.2d 842 (1995), one panel held that repeated use of explicitly mandatory language in connection with requiring specific substantive pr......
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Davis v. Finney, 71876
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