Taylor v. Sebelius

• Decision Date: 29 December 2004
• Docket Number: No. CIV.A. 04-3063-KHV.,CIV.A. 04-3063-KHV.
• Citation: 350 F.Supp.2d 888
• Parties: Michael J. TAYLOR, Plaintiff, v. Kathleen SEBELIUS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

350 F.Supp.2d 888

Michael J. TAYLOR, Plaintiff, v. Kathleen SEBELIUS, et al., Defendants.

No. CIV.A. 04-3063-KHV.

United States District Court, D. Kansas.

December 29, 2004.

COPYRIGHT MATERIAL OMITTED

Michael J. Taylor, Winfield, KS, pro se.

Brian D. Sheern, Kansas Attorney General, Topeka, KS, Julie L. St. Peter, El Dorado, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff, an inmate at the Winfield Correctional Facility in Winfield, Kansas, brings suit against Kathleen Sebelius (Governor of the State of Kansas), Phill Kline (Attorney General of the State of Kansas) and Roger Werholtz (Secretary of the Kansas Department of Corrections).¹ Plaintiff alleges that the Kansas state regulation which imposes a $25.00 monthly supervision fee on parolees is an unlawful bill of attainder and violates his rights under the ex post facto clause and the Fifth, Eighth and Fourteenth Amendments of the United States and Kansas Constitutions. This matter is before the Court on the State Defendants' Motion For Summary Judgment (Doc. # 31) filed September 10, 2004. For reasons stated below, the Court sustains defendants' motion.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Rule 56(e) also requires that "copies of all papers or parts thereof referred to in an affidavit be attached thereto or served therewith." To enforce this rule, the Court ordinarily does not strike affidavits but simply disregards those portions which are not shown to be based upon personal knowledge or otherwise do not comply with Rule 56(e). Maverick Paper Co. v. Omaha Paper Co., Inc., 18 F.Supp.2d 1232, 1234-35 (D.Kan.1998).

In pro se prisoner litigation, the Tenth Circuit endorses the completion and filing of a "Martinez report" where the prison constructs an administrative record which details the factual investigation of the events at issue. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir.1978). The Martinez report is treated like an affidavit, and the court is not authorized to accept the factual findings of the prison investigation when the plaintiff has presented conflicting evidence. Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997). The pro se prisoner's complaint, when sworn and made under penalty of perjury, is also treated as an affidavit; like the Martinez report, it serves as evidence for a summary judgment determination. See id.

Factual Background

For purposes of defendants' motion for summary judgment, the following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.

On January 28, 1985, in the District Court of Sedgwick County, Kansas, plaintiff pled guilty to the sale of cocaine. Plaintiff received a suspended sentence. On September 2, 1987, in the District Court of Sedgwick County, plaintiff pled guilty to possession of cocaine. Plaintiff again received a suspended sentence. On January 29, 1990, in the District Court of Sedgwick County, plaintiff pled guilty to possession of cocaine after a previous conviction. Plaintiff received a sentence of 15 years to life in prison.² On March 15, 1990, plaintiff was placed in the custody of the Kansas Department of Corrections ("KDOC").

Nearly eight years later, on March 3, 1998, the Kansas Parole Board ("KPB") released plaintiff on parole. Pursuant to K.A.R. § 44-5-115(b) — which imposes parole supervision fees in the amount of $25.00 per month — KDOC charged plaintiff monthly supervision fees of $25.00 for October and November of 1999.³ On April 14, 2000, plaintiff returned to KDOC custody, apparently to await a parole revocation hearing.⁴ On June 16, 2000, plaintiff had a balance in his inmate trust account of $35.00. KDOC deducted $10.00 for an outstanding urinalysis fee and $4.00 for outstanding medical fees, leaving a balance of$21.00. On June 19, 2000, plaintiff received $102.05 in his inmate account. That same day, pursuant to Internal Management Policy and Procedure ("IMPP") § 04-106 — which provides that outstanding fees from a previous incarceration or from post-incarceration supervision shall be assessed upon the offender's re-entry into KDOC custody — KDOC deducted $50.00 from plaintiff's inmate trust account to satisfy his supervision fees for October and November of 1999, leaving a balance of $73.05.⁵ On June 21 and July 19, 2000 plaintiff purchased canteen items totaling $19.99 and $19.29 respectively.

On November 2, 2000, the KPB again released plaintiff on parole. On June 29, 2001, plaintiff returned to KDOC custody, apparently to await a parole revocation hearing.⁶

On September 3, 2002, the KPB again released plaintiff on parole and KDOC charged plaintiff a $25.00 monthly supervision fee for October of 2002. On October 30, 2002, plaintiff returned to KDOC custody, apparently to await a parole revocation hearing.⁷ On January 31, 2003, plaintiff received incentive pay of $16.80 which was deposited in his inmate trust account. On February 3, 2003, KDOC deducted an account administration fee of $1.00. On February 13, 2003, plaintiff received $10.00 from an outside source. That same day, KDOC deducted $25.00 from plaintiff's inmate trust account to satisfy his supervision fee for October of 2002. On February 20, 2003, plaintiff purchased canteen items totaling $3.36. On February 25, 2003, plaintiff received $15.00 from an outside source. On February 27, 2003, plaintiff purchased canteen items totaling $12.31.

Plaintiff is currently in KDOC custody.

Plaintiff alleges that (1) K.A.R. § 44-5-115(b) violates the constitutional prohibition on ex post facto laws because at the time of his offense, Kansas did not impose a supervision fee; (2) as applied to him, K.S.A. § 75-52, 139 and K.A.R. § 44-5-115(b) are unlawful bills of attainder; (3) by deducting supervision fees from his prison inmate account, defendants subjected him to cruel and unusual punishment, unlawfully took his property in violation of the takings clause of the Fifth Amendment, and violated his rights to procedural due process and equal protection under the Fifth and Fourteenth Amendments. See Complaint (Doc. # 1) at 5-17.

Analysis

Before addressing plaintiff's claims, the Court briefly outlines the relevant statutory and regulatory provisions. In 1994, the Kansas legislature passed a bill which authorized the secretary of KDOC to impose certain fees on inmates and former inmates on supervision. Specifically, the law provides as follows:

The secretary of corrections is hereby authorized to adopt rules and regulations under which offenders in the secretary's custody may be assessed fees for various services provided to offenders and for deductions for payment to the crime victims compensation fund.

K.S.A. § 75-52, 139. Based on the statute, the secretary of KDOC passed a regulation which provides in relevant part as follows:

(1) Each offender under the department's parole supervision... shall be assessed a supervision service fee of ... $25.00 dollars per month. * * *

(2) A portion of the supervision service fees collected shall be paid to the designated collection agent or agents according to the current service contract, if applicable. Twenty-five percent of the remaining amount collected shall be paid on at least a quarterly basis to the crime...