Marksberry v. Chandler, 2002-CA-001920-MR.

• Decision Date: 31 October 2003
• Docket Number: No. 2002-CA-001920-MR.,2002-CA-001920-MR.
• Citation: 126 S.W.3d 747
• Parties: Nathan MARKSBERRY, Appellant, v. Warden Larry CHANDLER; and Lieutenant Larry Voirol, Appellants.
• Court: Kentucky Court of Appeals

126 S.W.3d 747

Nathan MARKSBERRY, Appellant, v. Warden Larry CHANDLER; and Lieutenant Larry Voirol, Appellants.

No. 2002-CA-001920-MR.

Court of Appeals of Kentucky.

October 31, 2003.

As Modified on Grant of Rehearing January 30, 2004.

Nathan Marksberry, Central City, pro se.

Rebecca Baylous, Frankfort, KY, for Appellee.

Before EMBERTON, Chief Judge; BAKER and JOHNSON, Judges.

OPINION

JOHNSON, Judge.

Nathan Marksberry has appealed from an order entered by the Oldham Circuit Court on August 14, 2002, which dismissed his petition for declaration of rights filed pursuant to KRS¹ 418.040 challenging a prison disciplinary action. Having concluded that Marksberry has not shown that he possessed a liberty interest subject to due process protection, we affirm.

On May 13, 2002, Roy Cannon, Marksberry's cellmate at the Luther Luckett Correctional Complex, made an accusation to Corrections Officer, Lieutenant Hezzie Turner, that Marksberry had struck him on the back of his head with an unknown sharp object while they were in their cell. Cannon was taken to the prison medical facility for an alleged cut. After conducting an investigation that included interviewing several other inmates, Lt. Turner prepared a Disciplinary Form (Write Up and Investigation Section) charging Marksberry with violation of Corrections Policies and Procedures (CPP) 15.2, Category IV, Item 1, physical action resulting in injury to another inmate. Lt. Turner also prepared a report containing confidential information that he had received during the investigation that was submitted to the Adjustment Hearing Officer. When questioned, Marksberry denied having struck Cannon.

On May 29, 2002, Lieutenant Larry Voirol, acting as an Adjustment Hearing Officer, conducted a disciplinary hearing at which Marksberry was assisted by an inmate legal aide. Marksberry called five witnesses to testify on his behalf, but his request to have Dr. Robin Sublett, a clinical psychologist at Luther Luckett who had been treating Marksberry, testify was denied. Marksberry sought to have Dr. Sublett testify on his alleged non-violent character and certain medication he was taking. The Adjustment Hearing Officer stated in the Disciplinary Report Form (Hearing Appeal Section) that he denied the request because Dr. Sublett had no direct knowledge of the specific incident at issue in the disciplinary action. Following the hearing, the Adjustment Hearing Officer issued a written report finding Marksberry guilty of the lesser, amended charge of violation of CPP 15.2 Category III, Item 11, physical action against another inmate, and imposed a penalty of 15 days disciplinary segregation.² The Adjustment Hearing Officer stated in the report that his decision was based on confidential information from more than two inmates that Marksberry had made threats to hit or cut Cannon for talking to other inmates or wanting to move to another cell, that Marksberry had been seen grabbing Cannon, and that Marksberry had threatened to hit other inmates for talking to Cannon. The Adjustment Hearing Officer also said the charge had been amended because the nurse's medical report indicated Cannon had suffered no injury. Larry Chandler, the prison warden, concurred with the decision upon appeal by Marksberry.

On July 18, 2002, Marksberry filed a petition for declaration of rights pursuant to KRS 418.040 challenging the prison disciplinary action as a violation of his right to due process under the Fourteenth Amendment to the United States Constitution and Section 2 of the Kentucky Constitution. More specifically, he alleged the disciplinary decision was not supported by sufficient evidence because the confidential information was unreliable and Lt. Turner's report lacked credibility. Marksberry also objected to denial of his request to call Dr. Sublett as a witness at the hearing. On August 9, 2002, the Department of Corrections, on behalf of the appellees, filed a response and a motion to dismiss. On August 14, 2002, the trial court entered an order dismissing the petition on both procedural and substantive grounds. It held that Marksberry had not been deprived of a protected liberty interest, and alternatively, that he had received sufficient procedural due process. Marksberry filed a motion to reconsider, which was summarily denied. This appeal followed.

Marksberry contends that his right to due process was violated because (1) he was not given 24-hour advance notice or a 24-hour continuation to prepare a defense to the amended charge, (2) he was improperly denied the opportunity to call Dr. Sublett as a witness, and (3) the decision was not supported by "some evidence" in large part because the confidential information was unreliable. Marksberry also maintains that he may bring a declaration of rights action under state law regardless of the existence of a protected liberty interest. Finally, Marksberry asserts that he did have a protected liberty interest because under CPP 15.3(VI)(B)(1), a decrease of five days meritorious good-time credit is mandated for conviction of a major violation of prison policies.

The trial court relied on the United States Supreme Court decision in Sandin v. Conner,³ and held that Marksberry's right to due process was not violated because he did not have a constitutionally protected liberty interest. In order to prevail on a Fourteenth Amendment procedural due process claim, a party must establish (1) that he enjoyed a protected "liberty" or "property" interest within the meaning of the Due Process Clause, and (2) that he was denied the process due him under the circumstances.⁴ A protected liberty interest may arise from two sources—the Due Process Clause itself and state law or regulations.⁵ Challenges to prison conditions including segregation or removal from the general prison population are based on a potential "liberty" interest, but not all deprivations of an interest trigger the procedural safeguards of the Due Process Clause.⁶ For example, disciplinary segregation typically does not implicate a liberty interest protected by the Due Process Clause itself because it is the sort of confinement an inmate can reasonably anticipate receiving.⁷ On the other hand, in Hewitt v. Helms,⁸ the U.S. Supreme Court analyzed the specific language of the relevant state statutes or regulations to determine whether a state-created liberty interest was created. The Court indicated that the use of language of a mandatory character such as "shall," "will" or "must" in addition to substantive predicates restricting the discretion of prison officials could create a protected liberty interest.⁹ In Sandin, the Court shifted the focus of analysis for determining whether state law created a protected liberty interest in the prison setting to the nature of the deprivation in an attempt to restrict participation of the courts in the regular operations of prisons.¹⁰ In addition to the existence of language guiding or restricting the discretion of prison officials, an inmate must now establish that the condition "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."¹¹

In Sandin, Conner was placed in disciplinary segregation for 30 days for violation of a prison regulation. The Court held that Conner had not established a protected liberty interest because he failed to show atypical and significant hardship. It noted that Conner's confinement "did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction."¹² The Court concluded that "[b]ased on a comparison between inmates inside and outside disciplinary segregation," Conner's placement in the special housing unit "did not work a major disruption in his environment."¹³ In measuring whether particular restrictions imposed on inmates are atypical and significant, Sandin indicated that courts should look to factors such as the following: (1) the effect of the segregation on the length of prison confinement under the original sentence; (2) the extent to which the conditions of the segregation differ from other routine prison conditions; and (3) the duration of the segregation imposed.¹⁴ While a determination of whether a specific situation constitutes "atypical and significant hardship" usually involves factual issues, the ultimate issue of atypically is a legal issue subject to de novo review.¹⁵

In the case sub judice, Marksberry received a penalty of 15 days disciplinary segregation with no loss of good-time credits. CPP 10.2 addresses the restrictions associated with the various categories of special management or special housing of inmates, including administrative control status, administrative segregation, disciplinary segregation, protective custody, special security, and temporary holding. Restrictions imposed under special management include reduced canteen and telephone privileges, opportunities to shower and shave of not less than three times weekly, and opportunities to exercise outside the cell of one hour per day for five days a week. Special management inmates retain the same opportunities as the general population to meal service, access to barber and hair care, and receipt and sending of mail. They also retain some access to legal materials, reading and writing materials, and visitation. Importantly, as in Sandin, there does not appear to be differences in the conditions between the various special housing types. Furthermore, Marksberry has not alleged that the conditions he experienced were more onerous, harsh or restrictive than those applicable to inmates normally assigned to disciplinary segregation. With respect to the duration of the segregation, numerous cases have held that segregation for periods exceeding the 15 days served by Marksberry with harsher conditions than those imposed under the Kentucky CPP did not rise to the level of atypical and significant hardship.¹⁶

Marksberry complains that he...