WITHERSPOON v. HANEY

No. 2015-CA-001052-MR.

ANDIS WITHERSPOON, Appellant, v. STEVE HANEY, WARDEN; KENDALL DUNCAN, ADJUSTMENT OFFICER; AND LADONNA H. THOMPSON, COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS, Appellees.

Court of Appeals of Kentucky.


Attorney(s) appearing for the Case

Andis Witherspoon, Pro Se West Liberty, Kentucky Brief for Appellant.

Angela T. Dunham , Justice & Public Safety Cabinet, Frankfort, Kentucky, Brief for Appellee.

BEFORE: KRAMER, CHIEF JUDGE; TAYLOR AND THOMPSON, JUDGES.


NOT TO BE PUBLISHED

OPINION

THOMPSON, Judge.

Andis Witherspoon, pro se, appeals from the Fayette Circuit Court's order dismissing his petition for declaration of rights regarding a prison disciplinary action.

On September 16, 2014, while Witherspoon was incarcerated at the Blackburn Correctional Facility, Officer Christopher Rogers performed a strip search of Witherspoon which was observed by Officer Emmitt Jackson. Afterward, Officer Rogers filed a disciplinary report stating that during the strip search, Witherspoon resisted, elbowed him in the stomach and then flushed the toilet.1 During an investigation, the investigator spoke with Officer Rogers and Officer Jackson who confirmed the report. Witherspoon was charged with physical action against an employee or non-inmate, a category 7-01 offense.

At the disciplinary hearing, Officer Rogers's report was reviewed and Witherspoon and Officer Jackson testified. Witherspoon denied resisting the search and striking Officer Rogers in the stomach. Officer Jackson testified he observed Witherspoon resisting but did not see Witherspoon strike Officer Rogers in the stomach.

Adjustment Officer Kendall Duncan found Witherspoon guilty. He relied on Officer Rogers's report, his and Officer Jackson's confirmation during the investigation that the report was true and accurate, and Officer Jackson's testimony that he witnessed Witherspoon resisting Officer Rogers. Adjustment Officer Duncan penalized Witherspoon with assignment to disciplinary segregation for 180 days and forfeiture of 730 days good time.

Witherspoon administratively appealed the adjustment decision to Warden Steve Haney. He argued he did not strike Officer Rogers as confirmed by Officer Jackson's testimony. Warden Haney amended Witherspoon's penalty to ninety days of disciplinary segregation and forfeiture of 180 days of good time.

Witherspoon filed a pro se petition for declaration of rights against Warden Haney, Adjustment Officer Duncan and LaDonna H. Thompson, Commissioner, Kentucky Department of Corrections (collectively the correction officials) pursuant to Kentucky Revised Statutes Chapter 418. Witherspoon alleged he was denied due process and equal protection when he was convicted without reliable evidence, and the strip search was unauthorized by Corrections Policy & Procedures.

The correction officials filed a response and motion to dismiss, arguing: (1) only the claim raised in appeal to Warden Haney could be reviewed; (2) Witherspoon received due process; and (3) there was sufficient evidence to uphold his discipline. The circuit court dismissed Witherspoon's petition, determining Witherspoon received due process and the description of the incident by Officer Rogers was sufficient evidence to support the disciplinary finding.

On appeal, Witherspoon argues there was insufficient evidence to support a finding of guilt.

Although we conduct a de novo review of the circuit court's decision to grant the motion to dismiss, the circuit court's review of prison disciplinary proceedings is very deferential and we will uphold the circuit court's decision unless it was erroneous as a matter of law. Mobley v. Payne, 484 S.W.3d 746, 749 (Ky.App. 2016).

Pursuant to Superintendent Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985), as adopted in Kentucky by Smith v. O'Dea, 939 S.W.2d 353, 356-58 (Ky.App. 1997), federal and state due process is satisfied in inmate disciplinary proceedings revoking good time credits if there is "some evidence" to support the decision.

Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.

Hill, 472 U.S. at 455-56, 105 S.Ct. at 2774.

Although Witherspoon denied striking Officer Rogers and Officer Jackson did not see Witherspoon strike Officer Rogers, Officer Rogers's statement that Witherspoon elbowed him in the stomach and his confirmation of that statement was some evidence that Witherspoon struck him. Therefore, the administrative decision finding Witherspoon guilty was sufficiently supported to comport with due process, thus permitting the resulting disciplinary consequences to Witherspoon.

Accordingly, we affirm the Fayette Circuit Court's order dismissing Witherspoon's petition.

ALL CONCUR.

FootNotes


1. Witherspoon was also subject to another prison disciplinary action regarding possession of prison contraband which is not before us. He was apparently disposing of tobacco by flushing it.

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