Jasper Pollini v. Ladonna Thompson Commissioner ( 2022 )

RENDERED: AUGUST 12, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1857-MR
JASPER POLLINI APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CI-00005
COMMISSIONER LADONNA
THOMPSON AND WARDEN DON
BOTTOM APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Jasper Pollini (“Appellant”) appeals from an order of
the Franklin Circuit Court granting a renewed motion to dismiss filed by
Commissioner LaDonna Thompson and Warden Don Bottom (“Appellees”).
Appellant, pro se, argues that the circuit court erred in dismissing his action
stemming from a prison disciplinary hearing. We find no error and affirm the
order on appeal.
FACTS AND PROCEDURAL HISTORY
In Pollini v. Thompson, No. 2016-CA-000668-MR, 2019 WL
1422708 (Ky. App. Mar. 29, 2019), a panel of this Court stated the facts of this
case as follows:
Pollini is a Kentucky state inmate. During the
relevant time, he was housed at Northpoint Training
Center (“Northpoint”). On November 19, 2014, Pollini
was written up for an incident that occurred on
November 10, 2014. Pollini allegedly fought and
struggled with Officer Phillips when the officer
attempted to confiscate a cellphone Pollini concealed in
his pants. Three other officers came to Officer Phillips’s
aid. One officer retrieved the cellphone after Pollini
threw it, and the other two officers helped Officer
Phillips put Pollini in handcuffs. After escorting Pollini
to the Special Management Unit, Officer Phillips’s legs
began to go numb, he experienced severe pain in his
lower back, and he vomited due to the pain. Officer
Phillips was then taken to the hospital.
Based on the information presented at the hearing,
the adjustment officer found Pollini guilty of physical
action resulting in death or injury of an employee and
sentenced him to one hundred eighty (180) days in
disciplinary segregation, a loss of three hundred thirty
(330) days non-restorable good-time credit, and
restitution in the amount of one thousand dollars
($1000.00). Pollini filed a warden’s appeal. The warden
denied Pollini’s appeal.
Pollini then filed a complaint for declaratory and
injunctive relief with the Franklin Circuit Court, arguing
-2-
his due process rights were violated during the
adjustment committee proceeding. Kentucky
Department of Corrections Commissioner LaDonna
Thompson and Warden Don Bottoms filed a motion to
dismiss, arguing Pollini’s complaint fails to state a claim
upon which relief can be granted because the adjustment
officer’s decision is supported by “some evidence,” and
Pollini failed to preserve some issues for review. Pollini
filed a response to the motion to dismiss, arguing he
exhausted his administrative remedies as to each claim
and reiterated that his due process rights were violated.
The circuit court granted the motion to dismiss.
On appeal from the dismissal, the first panel of this Court in 2019
determined that a remand was warranted because nothing in the record indicated
that either the Adjustment Officer or the circuit court had viewed the video to
determine whether it supported the Adjustment Officer’s finding or constituted
exculpatory evidence in favor of Appellant. The panel remanded the matter to the
Franklin Circuit Court with instructions to obtain and review the video to
determine if it constituted evidence either in support of the Adjustment Officer’s
finding of guilt or in favor of Appellant.
On remand, the Franklin Circuit Court viewed the video at issue. It
determined that “the video clearly supports the finding of the Adjustment Officer.”
Specifically, the court found that the video shows Appellant attempting to run from
and then resisting Officer Phillips, Appellant kicking and struggling with Officer
Phillips after each of them fell to the ground, and the arrival of additional officers
who restrained Appellant. Based on its viewing of the video, the Franklin Circuit
-3-
Court determined that “some evidence” exists to support the finding of the
Adjustment Officer, and that the dismissal of Appellant’s action was therefore
warranted. This appeal followed.
STANDARD OF REVIEW
As noted in Pollini, supra, a “motion to dismiss for failure to state a
claim upon which relief may be granted ‘admits as true the material facts of the
complaint.’” Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting Upchurch v.
Clinton County, 330 S.W.2d 428, 429-30 (Ky. 1959)). Accordingly, “a court
should not grant such a motion ‘unless it appears the pleading party would not be
entitled to relief under any set of facts which could be proved[.]’” Id. (quoting
Pari-Mutuel Clerks’ Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky
Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977)). “Since a motion to dismiss for
failure to state a claim upon which relief may be granted is a pure question of law,
. . . an appellate court reviews the issue de novo.” Id. (citation omitted).
As to the disciplinary proceeding, the decision of a prison disciplinary
committee is supported if any evidence is found in the record to support its
conclusion. Superintendent, Massachusetts Correctional Institution, Walpole v.
Hill, 472 U.S. 445, 455-56, 105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356 (1985). If
“some evidence” exists to support the decision of the prison disciplinary board, it
may not be disturbed on appeal. Id.-4-
ARGUMENTS AND ANALYSIS
Appellant, pro se, argues that the Franklin Circuit Court committed
reversible error in granting Appellees’ renewed motion to dismiss his complaint for
declaratory and injunctive relief. The focus of his argument is that the video of the
incident does not constitute “some evidence” required to sustain an administrative
finding of guilt on the offense of physical action resulting in the death or injury of
an employee. Appellant also asserts that the circuit court improperly failed to
make a finding that the required elements of “physical action” and “injury” were
present, and that the absence of these elements is fatal to the Adjustment Officer’s
finding that Appellant committed the offense.
Evidence is found in the record that “physical action” occurred during
the incident at issue. Proof was presented that Appellant attempted to flee from
Officer Phillips; that a struggle ensued; that both persons fell to the floor during the
struggle; and that Appellant kicked Officer Phillips. Further, evidence was
presented that Officer Phillips suffered an “injury” in the incident, as he
experienced numbness in his legs and back pain so severe that he vomited and was
transported to a hospital. The video supports the officers’ version of the event.
There is no basis for concluding that the findings of “physical action” and “injury”
must be memorialized by the Adjustment Officer in a particular manner or format.
-5-
Rather, there must merely be “some evidence” in the record to support the
decision. The record contains such evidence.
CONCLUSION
For these reasons, we affirm the order of the Franklin Circuit Court
granting Appellees’ renewed motion to dismiss Appellant’s complaint.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Jasper Pollini, pro se Angela T. Dunham
La Grange, Kentucky Frankfort, Kentucky
-6-