Elnicki v. Sauers ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,975
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JUSTIN D. ELNICKI,
Appellant,
v.
MARTIN SAUERS, et al.,
Appellees.
MEMORANDUM OPINION
Appeal from Ellsworth District Court; CAREY L. HIPP, judge. Opinion filed July 17, 2020.
Affirmed.
Bradley T. Steen, of Law Office of B. Truman Steen, LLC, of Ellsworth, for appellant.
Robert E. Wasinger, legal counsel, Department of Corrections, Ellsworth Correctional Facility,
for appellees.
Before GARDNER, P.J., WARNER, J., and ROBERT J. WONNELL, District Judge, assigned.
PER CURIAM: Justin Elnicki alleges the district court erred in summarily dismissing
his K.S.A. 60-1501 petition. In that petition, he alleged his due-process rights were
violated when he was disciplined for engaging in "lewd acts." He also claimed that, as a
result of his disciplinary segregation, he lost the opportunity to redeem a prepaid card for
a barbeque meal. After reviewing Elnicki's petition, we conclude that he failed to allege
the State deprived him of a cognizable liberty or property interest. His due-process claim
is therefore without merit, and the district court's summary dismissal was not error. We
affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
In May 2019, a corrections officer conducting a morning count of prisoners
stopped at Elnicki's cell. The officer saw a reflection in the cell window and rapid
movement; it appeared that one inmate was standing in front of the other. On closer
inspection, the officer saw the two cellmates sitting next to each other on the bottom
bunk. Elnicki had a surprised look on his face. Elnicki and his cellmate both had either a
towel or blanket covering their groin areas. The officer told the men to stand but they
refused. The officer called for backup and then entered the cell. When the inmates stood
up, both were naked and Elnicki had a visible erection. The corrections officers believed
a "lewd act" had occurred.
At a disciplinary hearing, Elnicki was found by a preponderance of the evidence to
have engaged in lewd acts in violation of K.A.R. 44-12-315. As punishment, Elnicki
received 18 days of segregation and 30 days of restriction. While Elnicki was in
segregation, he was not permitted to eat with other inmates. As a result, he was not
permitted to use a prepaid, nonrefundable $21.25 credit for barbeque when a vendor
came to the corrections facility.
Elnicki appealed his disciplinary action to the Secretary of the Kansas Department
of Corrections, who affirmed the hearing officer's ruling and noted the decision was
supported by the evidence and substantially complied with the Department's standards
and procedures. Elnicki then filed a petition under K.S.A. 60-1501, alleging his due-
process rights were violated because insufficient evidence supported his conviction.
Elnicki also argued the lost opportunity to use his prepaid barbeque card violated his due-
process rights. The district court summarily dismissed Elnicki's petition, finding he had
failed to state facts entitling him to relief. Elnicki appeals.
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DISCUSSION
A petition under K.S.A. 60-1501 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, 67, 883 P.2d 1211
(1994). To state a claim for relief, a petition must allege "shocking and intolerable
conduct or continuing mistreatment of a constitutional stature." Johnson v. State, 289
Kan. 642, 648, 215 P.3d 575 (2009). An inmate alleging a violation of his or her
constitutional rights in a K.S.A. 60-1501 petition carries the burden of proof to establish
the violation. Anderson v. McKune, 23 Kan. App. 2d 803, Syl. ⁋ 4, 937 P.2d 16 (1997).
K.S.A. 2019 Supp. 60-1503(a) requires summary dismissal of a K.S.A. 60-1501
petition "[i]f it plainly appears from the face of the petition and any exhibits attached
thereto that the plaintiff is not entitled to relief." Courts considering a request for
summary dismissal "must accept the facts alleged by the inmate as true." Hogue v. Bruce,
279 Kan. 848, 850, 113 P.3d 234 (2005). When a district court summarily denies a
petition for a writ of habeas corpus under this section, our review is unlimited. Johnson,
289 Kan. at 649.
The Due Process Clause of the Fourteenth Amendment proscribes states from
"depriv[ing] any person of life, liberty, or property without due process of law." U.S.
Const. amend. XIV. We apply a two-step analysis to determine whether an inmate
received the protections of due process. This court must first determine whether the State
has deprived the inmate of life, liberty, or property. If an inmate has been so deprived,
then this court must determine the extent and nature of the process to which the inmate is
entitled. Murphy v. Nelson, 260 Kan. 589, 597-98, 921 P.2d 1225 (1996); Washington v.
Roberts, 37 Kan. App. 2d 237, 240, 152 P.3d 660 (2007).
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On appeal, Elnicki alleges several due-process violations under federal and Kansas
law. For example, he contends his due-process rights were violated because there was
insufficient evidence to convict him of committing lewd acts. And he maintains he was
denied due process of law because the disciplinary administrator's findings were
insufficient and vague. He suggests, though he did not raise the argument previously, that
the deprivation of his rights should be held to a more exacting standard under the Kansas
Constitution. But unless Elnicki has been deprived of liberty or property, his right to due
process has not been implicated, and we do not reach these claims.
As a result of his disciplinary violation, Elnicki received 18 days of segregation
and 30 days of restriction. Neither of these sanctions implicates a liberty or property
interest. Anderson, 23 Kan. App. 2d at 807 ("It is clear that being placed in disciplinary
segregation does not implicate due process rights."); Davis v. Finney, 21 Kan. App. 2d
547, 558-59, 902 P.2d 498 (1995). Elnicki also alleges he lost good-time credit as a result
of the violation, but there is nothing in the record to support this claim. The State
encourages this court to end its analysis here because Elnicki has shown no constitutional
deprivation that would implicate his right to due process. See Anderson, 23 Kan. App. 2d
at 806-07 ("An inmate's claim under K.S.A. 60-1501 must assert the deprivation of a
constitutional right . . . . In the absence of such a claim, the petition should be summarily
dismissed.").
But Elnicki claims the loss of his prepaid, nonrefundable $21.25 credit for
barbeque, which he was not able to use because he was in segregation as a result of the
lewd-acts violation, constitutes the loss of a cognizable property interest. See Anderson,
23 Kan. App. 2d at 807 (extraction of small fine from inmate's prison account can
implicate due-process protections). Elnicki concedes his loss was not a fine. Instead, he
alleges that his loss invokes a property interest because it was a direct consequence of
being placed in segregation and that the State should have refunded the $21.25.
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Unlike Anderson, where a disciplinary hearing officer imposed a $20 fine, seven
days of segregation, and a $5.32 order of restitution, Elnicki received no financial
sanction as a result of his lewd act conviction. He was simply unable to enjoy the
barbeque he had paid for because he was placed in disciplinary segregation at the time
the meal was served. While we are sympathetic to Elnicki's disappointment, we note that
the State did not take the prepaid card away or otherwise deprive him of it. Rather, his
lost opportunity to use the barbeque card was a collateral consequence of his own actions.
That is, the lost opportunity arose because he committed the disciplinary violation when
he did, and thus was placed in segregation.
Because Elnicki has not alleged a deprivation of any liberty or property interest
implicating his due-process rights, the district court did not err in summarily dismissing
his K.S.A. 60-1501 petition.
Affirmed.
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