Elizabeth Turpin v. Vanessa Kennedy, Warden

RENDERED: JANUARY 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1154-MR
ELIZABETH TURPIN APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
v. HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 19-CI-00289
VANESSA KENNEDY, WARDEN,
KENTUCKY CORRECTIONAL
INSTITUTION FOR WOMEN APPELLEE
AND
NO. 2020-CA-1416-MR
ELIZABETH TURPIN APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
v. HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 18-CI-00646
JANET CONOVER, WARDEN,
KENTUCKY CORRECTIONAL
INSTITUTION FOR WOMEN APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
CALDWELL, JUDGE: Elizabeth Turpin, an inmate at the Kentucky Correctional
Institution for Women serving a sentence of life imprisonment without the
possibility of parole for twenty-five (25) years, has appealed from two dismissals
of petitions for declarations of rights she filed in the Shelby Circuit Court
following institutional disciplinary procedures. Having reviewed the record and
the briefs of the parties, we affirm.
FACTS
2020-CA-1154-MR
On March 31, 2018, inmate Kirstie Smith (Smith), who was housed in
a separate housing unit, walked into Elizabeth Turpin (Turpin)’s cell in the
Ridgeview Unit. Several minutes later, both inmates left Turpin’s cell and entered
a cell belonging to two other inmates, both of whom left their own cell after Turpin
and Smith entered it. Turpin and Smith remained in the cell that belonged to
neither of them for approximately thirty minutes, at which time Turpin left the cell
and walked into the dayroom temporarily, before returning to the cell. A few
minutes later, both Smith and Turpin left the cell and Smith left the Ridgeview
Unit.
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An investigation of the inmates’ movements, all of which were
recorded by camera, was conducted. Turpin was initially charged with the
violation of “being in a restricted or unauthorized area,” to wit, not her assigned
cell. The matter was set for an administrative hearing on April 23, 2018.
Before the hearing date, a second investigation was conducted of the
events by another officer who amended the charge Turpin was facing to “eluding
or resisting apprehension,” a violation of greater significance. The hearing was
postponed by a week.
At the hearing on April 30, 2018, Turpin admitted she had committed
the lesser violation with which she was originally charged, but denied guilt of the
amended charge. Turpin argued that Smith had only been charged with the former
offense and not the grander offense and that parity required that they both be
charged similarly for the same wrongful conduct. The relief was denied, and
Turpin was found guilty of both offenses because she “knowingly stayed in a cell,
not assigned to her, with another inmate, (sic) who lived in another living unit for
over 23 minutes (sic).” She was punished with thirty (30) days disciplinary
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segregation and loss of ninety (90) days of good time.1 She appealed the finding to
the warden, as Department of Corrections (DOC) regulations provide.
In her appeal to the warden, Turpin again asserted that parity required
her conviction and sentence be no more than received by Smith. Alternatively, she
requested that her sentence be suspended. The warden denied relief except to
restore the ninety (90) days’ good time, affirming the convictions for both charges.
Specifically, on the issue of parity, the warden found that in addition to entering
the cell of another inmate with Smith, Turpin, a resident of the Ridgeview Unit,
entered the dayroom for the purpose of ascertaining whether any staff were
present, so that Smith, who was not a resident of the Ridgeview Unit, could leave
without detection.
After the warden denied her appeal, Turpin filed a petition for
declaration of rights in the Shelby Circuit Court, challenging the findings of the
warden and arguing there was no evidence to support the charge of “eluding or
resisting apprehension.” Turpin pointed out that no new facts were alleged in the
second investigative report different from those in the first report which would
support the amended, greater charge of “eluding or resisting apprehension.”
1
“Good behavior in an amount not exceeding ten (10) days for each month served, to be
determined by the department from the conduct of the prisoner[.]” Kentucky Revised Statute
(KRS) 197.045(1)(b)1.
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Further, she argued that the hearing officer cited no facts in his findings which
would support the greater charge.
The circuit court dismissed the petition, finding that there was
evidence in the warden’s findings to support the greater charge. The circuit court
held that when Turpin exited the cell and left Smith behind, walked through the
dayroom and then returned to Smith in the cell, it was reasonable to surmise she
did so in an attempt to ensure no staff were present such that the “coast was clear”
for Smith to leave the unit to which she was not assigned. The circuit court also
held that such behavior was properly considered an attempt to elude apprehension.
Turpin appeals that determination to this Court.
2020-CA-1416-MR
On October 13, 2017, Turpin was interviewed by Internal Affairs
regarding a staff member’s wrongdoing. The allegation involved an instructor who
had accessed the Kentucky Offender Management System (KOMS) at Turpin’s
behest. The access was to determine what investigations and/or disciplinary
proceedings were being conducted into Turpin or several other inmates, including
Karen Brown, Turpin’s co-defendant in the murder trial for which Turpin is
serving a sentence of life without parole for twenty-five (25) years.2 Based on her
2
Turpin v. Commonwealth, 780 S.W.2d 619 (Ky. 1989), abrogated by Thomas v.
Commonwealth, 864 S.W.2d 252 (Ky. 1993); Brown v. Commonwealth, 780 S.W.2d 627 (Ky.
1989).
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answers to the officer’s queries, Turpin was charged with “pursuing/having a non-
correctional relationship with a non-inmate.”
At the hearing held pursuant to the charge, Turpin denied attempting
to pursue a relationship with the instructor and alleged that the Internal Affairs
officer held her until she admitted her actions by providing a statement. In that
statement, she stated that the instructor had made inappropriate remarks to her of a
sexual nature. The hearing officer found her guilty of the charge because of her
admissions to the Internal Affairs officer and assessed the maximum available
penalties of fifteen (15) days’ administrative segregation and the loss of sixty (60)
days of good time credit.
Turpin appealed the determination to the warden. She argued that
asking the instructor to look up information in KOMS did not amount to pursuing a
relationship with a non-inmate as many other staff members will often look up
such information for inmates with no expectations. The relief she requested was
amendment to a reduced charge and suspension of the penalty of administrative
segregation time.
The deputy warden denied the appeal and affirmed the penalty.
Turpin filed a petition for declaration of rights in Shelby Circuit Court. The
warden filed a motion to dismiss and the circuit court granted that motion. The
circuit court found that asking a staff member to do something contrary to the
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policies of the institution was by definition a non-correctional activity and that
asking a staff member for a “favor” constituted the fostering of an inappropriate
relationship. Turpin appeals the dismissal.
STANDARD OF REVIEW
The standard of review of a trial court ruling on a petition for
declaration of rights is de novo.
A motion to dismiss for failure to state a claim
under CR 12.02(f) is a question of law and is therefore
subject to de novo review. Campbell v. Ballard, 559
S.W.3d 869, 870 (Ky. App. 2018) (citing Carruthers v.
Edwards, 395 S.W.3d 488, 491 (Ky. App. 2012)). The
pleadings must be liberally construed in a light most
favorable to petitioner, and the allegations contained in
the complaint are taken as true. Id. at 870-71.
Hopkins v. Smith, 592 S.W.3d 319, 322 (Ky. App. 2019).
In this circumstance, the circuit court is itself acting as a reviewing
court, ensuring that the minimal due process standards were afforded the inmate in
the prison administrative proceeding. The circuit court does not sit as a fact-
finding court in such actions, but rather conducts a review to ensure “some
evidence” supports the finding below and is constrained in its review by the
administrative record. Smith v. O’Dea, 939 S.W.2d 353, 358 (Ky. App. 1997)
(“[W]e are persuaded that the “some evidence” standard of review provides courts
with a sufficient check upon adjustment committee fact-finding. Section 2 of our
Constitution is not compromised by this standard of review nor, in general, is it
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compromised by judicial deference to the judgments of prison disciplinary
committees and administrators[.]”). In Smith, supra, this Court announced that
even when the Department of Corrections had moved to dismiss an inmate action,
a summary judgment analysis is most appropriate.3
The review conducted by this Court is, in turn, qualified. We must
afford the administrative agency the necessary leeway to maintain discipline in the
prison, a matter than falls within its particular expertise. As such, our concern is
primarily one of ensuring that the inmate received the required minimum due
process. We do not reweigh the facts and cannot substitute our judgment for that
of the administrative agency.
Where, as here, principles of administrative law
and appellate procedure bear upon the court’s decision,
the usual summary judgment analysis must be qualified.
The problem is to reconcile the requirement under the
general summary judgment standard to view as favorably
to the non-moving party as is reasonably possible the
facts and any inferences drawn therefrom, with a
reviewing court’s duty to acknowledge an agency’s
3
More precisely, the circuit court granted the appellee’s motion to dismiss
Smith’s petition for failure to articulate a genuine controversy as required under
KRS 418.040. Similar to motions to dismiss for lack of controversy, [Kentucky
Rule of Civil Procedure] CR 12 motions to dismiss for failure to state a claim, and
CR 56 motions for summary judgment are typical Corrections Department
responses to inmate declaratory judgment petitions. For reasons appearing in the
text below, we believe that a motion for summary judgment provides, in most
cases, the most appropriate procedure and standards for addressing these petitions.
We have tailored our discussion accordingly.
Smith, 939 S.W.2d at 355 n.1.
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discretionary authority, its expertise, and its superior
access to evidence. In these circumstances we believe
summary judgment for the Corrections Department is
proper if and only if the inmate’s petition and any
supporting materials, construed in light of the entire
agency record (including, if submitted, administrators’
affidavits describing the context of their acts or
decisions), does not raise specific, genuine issues of
material fact sufficient to overcome the presumption of
agency propriety, and the Department is entitled to
judgment as a matter of law.
Id. at 356.
ANALYSIS
Our review is limited to discerning whether the circuit court applied
the correct standard of review itself in evaluating the administrative actions
conducted at the institution and whether such afforded Turpin proper procedural
due process. Procedural due process in this context minimally requires advance
written notice of charges, an opportunity to present evidence when possible, and
written findings that include the evidence relied upon in finding a violation of
institutional rules.
In the context of a prison disciplinary proceeding, the
state is only required to provide advance written notice of
the charges; provide an opportunity to call witnesses and
present evidence when those events remain consistent
with institutional safety and correctional goals; and to
provide a written statement from the fact finder of the
evidence relied on and the reasons for the disciplinary
action. Superintendent, Mass. Corr. Inst., Walpole v.
Hill, 472 U.S. 445, 105 S. Ct. 2768, 86 L. Ed. 2d 356-9-
(1985). “[S]o long as the conditions or the degree of
confinement to which the prisoner is subjected do not
exceed the sentence which was imposed and are not
otherwise in violation of the Constitution, the due process
clause of the Fourteenth Amendment does not subject an
inmate’s treatment by prison authorities to judicial
oversight.” Mahoney v. Carter, 938 S.W.2d 575 (Ky.
1997).
McMillen v. Kentucky Dep’t of Corr., 233 S.W.3d 203, 205 (Ky. App. 2007).
In the charge involving Turpin’s presence in a cell to which she was
not assigned while in the company of Smith, Turpin argues that there was no
additional evidence to support the amendment to the greater violation. The circuit
court, however, found that it was her foray through the common room while Smith
stayed behind in the cell which supported the administrative finding.
The court noted that the record established that Turpin alone exited
the cell not assigned to either her or Smith and she alone walked through the empty
common room and returned to the cell. Upon her return to the unauthorized cell,
Turpin and Smith left the cell together and Smith proceeded out of the unit. The
court noted that the warden’s finding that the action performed by Turpin alone
provided a factual basis for the finding, reasoning that Turpin entered the dayroom
alone to ensure no staff was present. This allowed Turpin’s fellow inmate to leave
the unit undetected, as that inmate was not assigned to Turpin’s unit and was not
authorized to be present in the unit. Thus, some evidence supported that finding
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and the motion to dismiss was properly entered. Yates v. Fletcher, 120 S.W.3d
728, 731 (Ky. App. 2003).
In the second action, Turpin argues that there was not sufficient
evidence to support a finding that she pursued a relationship with the instructor,
but simply asked him to look up information on her and other inmates, including a
co-defendant, on KOMS and asked to use his electronics to show others a video of
her son singing.4 Again, our review is limited to whether there was “some
evidence” to support the circuit court finding. An admission satisfies that standard.
Id.The circuit court noted that the reason that staff are not to do “favors”
of the sort done here for inmates is because doing so changes the relationship
between the inmate and the staff member.5 This ruling gives the prison
administration the deliberation needed to ensure that the prison remains a safe
place for both inmates and staff.
We note on the one hand the prison
administration’s compelling interest in order and in
authority as a means to order. In a prison, where a state
4
Turpin argues that the hearing officer omitted any reference to the video of her son singing,
focusing only on the KOMS request. However, we find that the request to access KOMS alone
is sufficient.
5
Turpin alleges, apparently for the first time on appeal, that there was no policy specifically
prohibiting such request by an inmate to a staff member, but acknowledges that there was a
policy for staff not to “[d]iscuss another employee or inmate with or in the presence of an
inmate.” KCIW 03-02-01(B)(2), Guideline for Interaction with an Inmate, p. 2 (2013). We find
this policy meets the “some evidence” standard.
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of emergency and high alert is unrelieved, any defect in
the administration’s authority poses a risk of disruption.
On the other hand, inmate declaratory judgment petitions,
like the one before us, typically present uncomplicated
factual situations and concern relatively minor interests
(in slightly reduced sentences, for example, or marginally
mitigated conditions of confinement). In light of these
disparate interests and the circumstances in which they
typically arise, we are persuaded that the “some
evidence” standard of review provides courts with a
sufficient check upon adjustment committee fact-finding.
Smith, 939 S.W.2d at 358.
CONCLUSION
We find that Turpin was afforded proper procedural due process in
that she was provided written notice of the charges against her and was provided a
hearing, as well as written findings of fact. The circuit court engaged in a proper
analysis, finding some evidence in the administrative record to support the findings
and therefore granting the motions to dismiss in favor of the wardens. We affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Vincent Aprile II Angela T. Dunham
Louisville, Kentucky Frankfort, Kentucky
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