Troy Cox v. Kathlene Kenny ( 2022 )

RENDERED: APRIL 15, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1890-MR
TROY COX APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
v. HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 19-CI-00340
KATHLENE KENNY APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Troy Cox, an inmate at the Northpoint Training Center
(NTC), appeals from the Boyle Circuit Court’s dismissal of his declaratory
judgment action in which he requested a review of a prison disciplinary
proceeding. For the reasons set forth herein, we affirm.
On December 29, 2018, prison authorities found two orange film
strips which were identified as Suboxone. The strips were located on top of Cox’s
locker under his television. Cox was charged with possession or promoting
dangerous contraband. Corrections Policies and Procedures (CPP) 15.2 (Category
VI) (3) classifies possessing or promoting dangerous contraband as a major
violation. The CPP defines dangerous contraband in conformity with Kentucky
Revised Statutes (KRS) 520.010(3) which includes “any controlled substance[.]”
Suboxone, a trade name for buprenorphine, is a controlled substance and is listed
as Schedule V narcotic analgesic. Although legitimately prescribed by physicians
in the treatment of addiction, Suboxone is itself subject to widespread abuse.
Cox’s disciplinary hearing was conducted on January 3, 2019.
Neither Cox nor his counsel called any witnesses or made any statements. The
NTC adjustment committee found Cox guilty, divested him of 60 days of good
time credit, and assessed him fifteen days of disciplinary segregation.
Cox filed a petition for declaration of rights with the Boyle Circuit
Court against NTC Warden Brad Adams (the warden), Adjustment Officer Allyson
Lambert, and Kathleen Kenny. On September 17, 2019, while Cox’s petition was
pending, the warden conducted a review of the matter and determined to vacate
Cox’s loss of good time credit leaving him to only serve fifteen days of
disciplinary segregation.
The respondents filed a motion to dismiss based upon the fact that,
once Cox’s loss of good time credit was vacated, Cox could no longer claim
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deprivation of a protected liberty or property interest and, therefore, his claims
were moot. The circuit court granted the motion. In its order of dismissal, the
circuit court noted that an inmate has no constitutional right to be held in a prison’s
general population and does not possess a protected property interest in freedom
from segregation.
On appeal, Cox argues that the “NARK II” field test used to
determine the substance found was insufficient, on its own, to sustain his
conviction and argues that no proper foundation was laid for establishing the
accuracy of the test or whether the test was properly conducted. Cox also argues
that his conviction should not “escape judicial review” only because his good time
credits were ultimately restored, claiming such actions are arbitrary and capricious
in violation of Section 2 of the Kentucky Constitution.
We are authorized to affirm the lower court’s decision for any reason
supported by the record. Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky.
2009). Dismissal of Cox’s petition pursuant to Kentucky Rules of Civil
Procedure (CR) 12.02(f) for failure to state a claim upon which relief can be
granted is a pure question of law. Therefore, an appellate court reviews such
matters de novo. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010).
While “prisoners do not shed all constitutional rights at the prison
gate, . . . [d]iscipline by prison officials in response to a wide range of misconduct
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falls within the expected perimeters of the sentence imposed by a court of
law.” Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 2301, 132 L.Ed.2d
418 (1995). When a prisoner establishes a valid liberty interest that is entitled to
protection, “the implementation of procedural safeguards in the punishment for
rule infractions must be tempered by the serious concern for prison security and the
safety of both inmates and staff.” Webb v. Sharp, 223 S.W.3d 113, 118 (Ky.
2007). When due process protection is warranted is based upon the consequences
of inmate discipline.
CPP 10.2 addresses the restrictions associated with the special
management or special housing of inmates including those of disciplinary
segregation. Restrictions under special management include reduced canteen and
telephone privileges but allow inmates the opportunity to shower and shave not
less than three times weekly, and to exercise outside the cell for one hour a day
five days a week. Inmates still retain the same opportunities as the general
population to meal service, access to barber and hair care, and to receive and send
mail. They also have access to legal materials, reading and writing materials, and
visitation. Importantly, as in Sandin, there are no differences in the conditions
between the various special housing types. Therefore, Cox did not suffer “atypical
and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300. In applying this test and
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ruling that the prisoner had no right to due process before he was subjected to
thirty days of disciplinary segregation, the Court in Sandin determined that the
prisoner’s punishment through disciplinary segregation “mirrored those conditions
imposed upon inmates in administrative segregation and protective custody[,]” and
“did not exceed similar, but totally discretionary, confinement in either duration or
degree of restriction.” Id. at 486, 115 S.Ct. at 2301. Numerous other cases have
held that segregation for periods exceeding the 15 days served by Cox, with
harsher conditions than those imposed under the Kentucky CPP, did not rise to the
level of atypical and/or significant hardship. See Marksberry v. Chandler, 126
S.W.3d 747, 750-51 n.16 (Ky.App. 2003).
In his last argument, Cox relies on Black v. Department of
Corrections, No. 2017-CA-001048-MR, 2018 WL 4050538, at *1 (Ky.App. Aug.
24, 2018) (unpublished), for the suggestion that the NARK II test should be
considered per se insufficient to support his conviction. In Black, this Court noted
that the record in a marijuana possession case did not establish that the corrections
officer conducting the test followed procedure or that the results of the NARK II
test were reliable. Those matters became issues for the Court of Appeals only
because Black, at his hearing, denied possession of the substance and challenged
the field test results. Thus, the test and the circumstances around it became issues
of fact for the hearing committee subject to later judicial review. Here, however,
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neither Cox nor his counsel: (1) ever denied the substance found was Suboxone;
(2) ever objected to the use of, or results of, the NARK II test; or (3) ever denied
that the substance found belonged to Cox. By such inaction, any belated objection
to the test or its results was effectively waived. No one at NTC was required to lay
any additional pro forma foundation for the test or its accuracy if the ultimate
finding, that the substance confiscated from Cox was Suboxone, was never
questioned.
In Webb, the Kentucky Supreme Court went on to consider whether
there was other evidence in addition to a field test to establish the substance
confiscated from inmates was marijuana. The Court affirmed the convictions
because the inmates’ reactions to the substances being discovered indicated
contraband and “the inmates elected not to testify or assert that the substance was
not what the officers believed it to be.” Webb, 223 S.W.3d at 120. See White v.
Boards-Bey, 426 S.W.3d 569, 576 (Ky. 2014) (explaining that a prisoner’s silence
can be considered against a prisoner in a prison disciplinary hearing). Under those
circumstances, the Court ruled that even with the field tests excluded, it was
“common sense” that there was “some evidence” to support the decision reached
by the hearing officers. Webb, 223 S.W.3d at 121.
Similar to the prisoners in Webb, there is nothing in Cox’s conduct or
the record before us to make us question that the substance recovered was anything
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other than contraband. The record here contains nothing other than evidence
supporting the verdict reached.
Finally, pursuant to Superintendent, Massachusetts Correctional
Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d
356 (1985), we find that Cox’s due process rights were adequately protected. In
Hill, it was established that minimum due process requirements are met if “the
findings of the prison disciplinary board are supported by some evidence in the
record.” Id. at 454, 105 S.Ct. at 2773. In applying this “some evidence” standard,
the Court noted that the “relevant question is whether there is any evidence in the
record that could support the conclusion reached by the disciplinary board.” Id. at
455-56, 105 S.Ct. at 2774. As such, we are unable to ascertain any procedural due
process violations or arbitrary conduct in violation of Section 2 of the Kentucky
Constitution from the record before us.
Accordingly, we affirm the Boyle Circuit Court’s order of dismissal
of Cox’s petition seeking a declaration of rights for failure to state a claim on
which relief can be granted.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Troy Cox, pro se Kristin Wehking
Burgin, Kentucky Frankfort, Kentucky
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