Shehan v. Kan. Dep't of Corr.

PER CURIAM.

Appeal from Reno District Court; Trish Rose, Judge.
James Shehan, pro se appellant. Jon D. Graves, of Kansas Department of Corrections, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and DANIEL L. HEBERT, District Judge Retired, assigned.

MEMORANDUM OPINION

PER CURIAM.

James Shehan, an inmate at the Hutchinson Correctional Facility (HCF), appeals from the district court's decision to dismiss his pro se petition for writ of mandamus. For the reasons stated below, we affirm.

Facts

On April 22, 2009, the Kansas Parole Board decided to pass Shehan for reconsideration of parole until December 2013. In conjunction with this decision, the Board recommended, in part, that Shehan “develop a more structured parole plan with emphasis on reducing areas of criminogenic risks.” On June 12, 2010, Shehan submitted a written request to the Board seeking an explanation for the recommendation. In a letter dated July 2, 2010, the Board responded that Shehan was expected “to do the self-reflection necessary to identify and then work on your risk areas.”

On August 29, 2011, Shehan submitted an inmate request form asking his unit team counselor to create a new program plan for him pursuant to K.A.R. 44–5–105(c)(2). The unit team counselor responded: “This issue has been discussed.” On September 7, 2011, Shehan filed a formal grievance seeking to compel the unit team staff to create a new program plan for him. On September 27, 2011, his unit team counselor responded to the grievance in a written memo stating: “K.A.R. 44–15–101a(d)(2) prohibits use of the grievance procedure to address this concern as it is part of the classification decision-making process.” Dissatisfied with the response, Shehan requested the grievance be forwarded to the warden. The warden responded to Shehan's grievance in a written memo dated October 10, 2011:

“I reviewed the response provided by your unit team and concur per K.A.R. 44–15–101a provides that the grievance procedure shall not be used in any way as a substitute for, or as part of, the inmate disciplinary procedure, the classification decision-making process, or the property loss or personal injury claims procedure, or the procedure for censorship of publications specified in the secretary's internal management policy and procedure.”

Shehan appealed the warden's decision to the Secretary of Corrections. On November 4, 2011, Patricia Berry, the Secretary of Corrections' designee, responded to the appeal by noting that the grievance appeared to have been resolved. Specifically, Berry stated that “[a]s a result of the appeal, a request for more information was made to the facility deputy warden. As a result, the inmate was afforded an interview and a review of his [Inmate Program Plan] with his unit team counselor.”

On January 17, 2012, Shehan filed a pro se petition for writ of mandamus seeking to compel the Kansas Department of Corrections (KDOC) to create a new program plan for him as required by K.A.R. 44–5–105(c)(2). The district court dismissed Shehan's petition on grounds that he failed to show he was entitled to the relief he requested.

Analysis

K.A.R. 44–5–105(a) states that all inmates incarcerated in a KDOC facility shall be subject to a program plan developed by an initial classification committee within 1 month of an inmate's admission into prison. Pursuant to K.A.R. 44–5–105(b), the program plan includes various tasks designed to assist the inmate in making changes in order to allow the inmate to re-enter the community without coming in conflict with the law.

At issue in this appeal is K.A.R. 44–5–105(c)(2), which provides: “Any inmate may, at any time, request the creation of a formal program plan. The unit team shall, within 60 days, confer with the inmate and shall draft a program plan and timetable for the inmate.” Relying on this language, Shehan contends

• K.A.R. 44–5–105(c)(2) requires the KDOC to confer with him and then draft a new program plan upon his request.

• He requested a new program plan be created for him that included substance abuse treatment.

• Although the KDOC may have afforded him an interview and a review of his Inmate Program Plan with his unit team counselor as a result of his grievance, the KDOC failed to confer with him or provide him with a new program plan that included substance abuse treatment,

• The KDOC's failures in this regard deprived him of a liberty interest.

Mandamus is “a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” K.S.A. 60–801. The burden of showing an entitlement to mandamus relief rests with the petitioner. S.M. v. Johnson, 290 Kan. 11, 14, 221 P.3d 99 (2009). Whether mandamus is an appropriate vehicle for relief involves interpretation of the applicable procedural and substantive law, a question over which this court exercises unlimited review. State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 443, 172 P.3d 1154 (2007).

Generally, a writ of mandamus is only available to compel the performance of a clearly defined duty or to enforce a right that is not in substantial dispute. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 832–33, 104 P.3d 378 (2005). Moreover, mandamus is not an appropriate remedy when the petitioner seeks to compel a public official to perform “an act that involves the exercise of discretion.” 278 Kan. at 833. In fact, courts generally require public officials to perform only those acts that are “ ‘strictly ministerial’ “ in nature, meaning those acts the official clearly is obligated to perform “ ‘in a prescribed manner, in obedience to the mandate of legal authority.’ “ 278 Kan. at 833.

Finally, a writ of mandamus is extraordinary relief and should be issued only where other legal avenues for relief will provide inadequate results. See Bohanon v. Werholtz, 46 Kan.App.2d 9, 12, 257 P.3d 1239 (2011) (noting that mandamus is not a common means of obtaining redress, but is available only in rare cases and as a last resort).

Based on the legal principles outlined above, Shehan is entitled to mandamus relief if he can establish that: (1) he has a clear right to relief; (2) the KDOC's duty is clearly defined; and (3) he has no other adequate remedy. See Ricke v. City of El Dorado, 262 Kan. 491, 493, 939 P.2d 916 (1997); State v. McDaniels, 237 Kan. 767, 771–72, 703 P.2d 789 (1985); see K.S.A. 60–802(b).

Clear right to relief

The district court dismissed Shehan's mandamus petition on grounds that Shehan failed to show he was entitled to relief. Although not specifically stated, it appears from the order of dismissal that the district court found Shehan already had been afforded the relief he requested: an interview and a review of his program plan with his unit team counselor following his appeal to the Secretary of Corrections. Although Shehan acknowledges he was afforded an interview and a review of his program plan, he argues the interview and the review did not comport with requirements set forth in K.A.R. 44–5–105(c)(2) because the review did not include a conference to discuss his new program plan and a new program plan was not drafted within 60 days of such a conference. Thus, the crux of Shehan's argument appears to be two-fold: (1) the regulation requires the unit team to confer with the inmate and the interview he had with the unit team failed to satisfy the conference requirement; and (2) the regulation requires the unit team to draft a new program plan that incorporates any and all treatment sought by the inmate and the KDOC did not comply with this requirement.

But Shehan fails to establish that he had a clear right to another meeting with his unit team counselor or to creation of a new program plan that included substance abuse treatment. Regarding a second meeting, Shehan fails to allege why the in-person interview conducted by his unit team counselor did not satisfy the regulation's requirement that the unit team “confer” with him. And even if he had so alleged, Shehan has not included in the record on appeal any documents or other information related to the interview and review of his program plan with his unit team counselor to support such a distinction. Shehan bears the burden of designating facts in the record to support his claim; without such a record, the claim of error fails. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 283, 225 P.3d 707 (2010).

Shehan also fails to establish he had a clear right to receive a new program plan incorporating the specific treatment he requests. K.A.R. 44–5–105 is divided into three subsections. Subsection (a) requires an initial classification committee to meet with the offender within 1 month after arriving at the prison for purposes of developing a program plan. Subsection (b) designates the various tasks to be included within the program plan. The first part of subsection (c) permits an inmate to refuse to participate in a formal program plan and prohibits penalizing an inmate for doing so. The second part of subsection (c) permits an inmate at any time to request the creation of a formal program plan. Given it is part and parcel of the subsection dealing with a new inmate's refusal to participate in a formal program plan in the first month of incarceration, we construe the regulatory directive in the context of the subsection as a whole. In doing so, we believe the KDOC intended to permit an inmate who previously refused to participate in a formal program plan to, “at any time, request the creation of a formal program plan” and did not intend to permit an inmate to, at any time, request modification of a current formal program plan already in place. (Emphasis added.) See K.A.R. 44–5–105(c)(2).

But even if this were not the case, there simply is no language in the regulation requiring the unit team to draft a program plan that incorporates specific treatment included within the inmate's request. See K.A.R. 44–5–105(c)(2) (“Any inmate may, at any time, request the creation of a formal program plan. The unit team shall, within 60 days, confer with the inmate and shall draft a program plan and timetable for the inmate.”). When an administrative agency adopts a regulation within the agency's statutory authority, that regulation has the force and effect of law. See K.S.A. 77–425; Tonge v. Werholtz, 279 Kan. 481, 483–84, 109 P.3d 1140 (2005). But when a regulation's meaning is clear from the plain language used in it, a court should give the regulation its plain-language meaning. See Ussery v. Kansas Dept. of SRS, 258 Kan. 187, 194, 899 P.2d 461 (1995). Because the record reflects that Shehan was afforded the opportunity to meet with his unit team to discuss his program plan, he cannot show that he has a clear right to any additional relief.

Clearly defined, ministerial duty

A writ of mandamus should be issued only when a mandamus respondent's legal duty is clear. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, Syl. ¶ 16, 244 P.3d 642 (2010). Mandamus generally cannot be invoked to control a public official's discretion and may only be used to control the public official's ministerial acts, i.e., those acts the official “ ‘is required to perform based upon a given set of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion about the propriety or impropriety of the act to be performed.’ [Citations omitted.]” Schmidtlien Electric, Inc., 278 Kan. at 833.

Similar to the argument in the preceding section, Shehan claims that the KDOC had a clearly defined duty to draft a program plan that incorporates specific treatment included within the inmate's request. Again, we believe the KDOC intended to require the unit team to create a formal program plan upon the request of an inmate who previously declined to participate in a program and did not intend to require the unit team to modify an existing formal program plan already in place. See K.A.R. 44–5–105(c)(2). But even if the regulation does impose an affirmative duty on the unit team to modify a formal program plan already in place, the regulation does not require the unit team to modify the plan as specifically requested by a particular inmate. The regulation makes clear that the KDOC has discretion to develop an Inmate Program Plan based on an interview of the inmate and a review of available information concerning the inmate, including the availability of programs and services at the institution, the inmate's personal preference, and the opinions of security officers. K.A.R. 44–5–105(a). Thus, KDOC staff is not required to adopt a particular program when a certain set of facts exists; rather, the staff must rely on their own judgment as to whether an inmate's needs can be met by a certain program. Because they are discretionary, the KDOC's decisions regarding the particular programs to include in a program plan involve a ministerial duty that falls outside the scope of a writ of mandamus.

Other legal remedy available

Finally, before an individual is entitled to mandamus relief, no other adequate remedy at law can exist. Board of Harvey County Comm'rs v. Whiteman, 23 Kan.App.2d 634, Syl. ¶ 2, 933 P.2d 771 (1997); see Alpha Med Clinic v. Anderson, 280 Kan. 903, Syl. ¶ 7, 128 P.3d 364 (2006).

A K.S.A. 60–1501 petition “is a procedural means through which a prisoner may challenge the mode or conditions of his or her confinement, including administrative actions of the penal institution.” Safarik v. Bruce, 20 Kan.App.2d 61, 66–67, 883 P.2d 1211,rev. denied 256 Kan. 996 (1994). Habeas corpus petitions are also appropriate actions for a prisoner to bring when alleging constitutional violations. See Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). Here, Shehan's claim that the KDOC's failure to provide him with a new program plan that included substance abuse treatment violates his constitutionally guaranteed right to due process and equal protection of the law. Thus, it appears Shehan could have pursued his claim through the timely filing of a K.S.A. 60–1501 petition and Shehan has failed to meet his burden to show otherwise. See Bohanon, 46 Kan.App.2d at 13. A writ of mandamus is not appropriate when a petitioner possesses another legal avenue for relief. See State v. Becker, 264 Kan. 804, 807, 958 P.2d 627 (1998).

Affirmed.