Dunn v. Freeman

KELLER

NOT TO BE PUBLISHED
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE ACTION NO. 11-CI-00861
OPINION
AFFIRMING

BEFORE: KELLER, TAYLOR AND VANMETER, JUDGES. KELLER, JUDGE: Jeffrey Dunn (Dunn), appeals a decision of the Oldham County Circuit Court that dismissed his Petition for Declaration of Rights in a prison disciplinary matter. Because there was some evidence to support the disciplinary action, the decision is affirmed.

Dunn lost 180 days of good time credit and was given sixty days of disciplinary segregation due to inappropriate sexual behavior with former Deputy, Melissa Roe. An extraordinary occurrence report was filed on May 11, 2011, citing a telephone conversation between Dunn and Roe discovered via the inmate telephone monitoring system. While the actual telephone conversation does not appear in the record, the report indicates that sexual contact between Roe and Dunn occurred at the prison. Further review of the prison monitoring system revealed that Dunn contacted Roe more than fourteen times in a thirty-day period.

Dunn asserts that he and Roe hailed from the same small town and have known each other for many years. While Dunn admits to having the intent to engage in inappropriate sexual behavior, he avers that the sexual acts for which he was accused were merely discussed and did not actually occur. Despite Dunn's assertions, Roe was terminated from her position as a result of her relationship with him and Dunn suffered the loss of good time credit.

On July 29, 2011, Dunn was given a copy of the investigatory report. Dunn acknowledged receipt of the report, pled not guilty, waived 24 hour notice, and waived his right to appear at the hearing. Dunn was also informed of his right to call witnesses and was assigned legal aid. The disciplinary hearing occurred on August 8, 2011, and Dunn was found guilty. Dunn appealed the decision to Warden James Sweatt on August 11, 2011, and the Warden affirmed.

On October 3, 2011, Dunn filed a Petition for Declaration of Rights in the Oldham Circuit Court. The Circuit Court dismissed the petition on November 9, 2011. On appeal, Dunn argues that the circuit court erred to his substantial prejudice when it dismissed his petition because there was no evidence to support the disciplinary action. Further, Dunn argues that the adjustment officer failed to make an independent determination of the facts and, as a result, his due process rights were violated. No responsive brief was filed on behalf of the appellee.

Before turning to the arguments, it is important to note that "prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Webb v. Sharp, 223 S.W.3d 113, 117 (Ky. 2007) (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974)).

In balancing the divergent interests between the institution's need for security and the inmates' constitutional rights, the U.S. Supreme Court has concluded due process requirements in prison disciplinary hearings, where the loss of good time credit is at stake, include: "(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the fact finder (sic) of the evidence relied on and the reasons for the disciplinary action."

Id. at 117-18 (quoting Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356 (1985)). A determination regarding the sufficiency of evidence "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of evidence." Id. at 118 (quoting Hill, 472 U.S. at 455, 105 S. Ct. at 2774). Instead, "the 'relevant question is whether there is any evidence in the record that could support the conclusion . . . ."' Id. at 118 (quoting Hill, 472 U.S. at 455-56, 105 S. Ct. at 2774). This is referred to as the "some evidence" standard.

In this case, Dunn was afforded the due process he was entitled to receive: (1) written notice of the allegation, (2) an opportunity to appear at the hearing, and (3) written findings of fact indicating the cause of the disciplinary action. The original incident report and the investigation report indicate that the impropriety was revealed when reviewing the inmate call monitoring system. Specifically, it was discovered that Dunn and Roe engaged in sexual behavior at the prison. In light of these reports, it is apparent there is "some evidence" that Dunn engaged in an inappropriate sexual relationship with Roe. It is not for this court to weigh the evidence, but merely to determine if evidence exists. The mere presence of this evidence is sufficient to warrant the dismissal of Dunn's Petition for Declaration of Rights and the decision of the Oldham Circuit Court is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Jeffrey Dunn, pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: No Brief Filed